ASSET PURCHASE AGREEMENT
Exhibit 10.48
This ASSET PURCHASE AGREEMENT (this “Agreement”) is made as of June 23, 2025 (the “Effective Date”), by and among Cogility Software Corporation (“Seller”), Data443 Risk Mitigation, Inc. (“Buyer”). Collectively the Seller and Buyer, are sometimes referred to herein as the “Parties”, and each, a “Party”.
WITNESSETH:
WHEREAS, Seller desires to sell and transfer to Buyer, and ▇▇▇▇▇ desires to purchase and accept from Seller certain assets (the Purchased Assets) and property used in the operation of Seller’s cyber business (TacitRed) on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the respective covenants and agreements herein contained, the sum of $2,600 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
In addition to the other terms defined in this Agreement, the following terms for purposes of this Agreement have the meanings hereinafter specified:
(a) “Accounts Receivable” means all receivables (including, without limitation, accounts receivable, loans receivable and customer advances) arising from or related to the Business.
(b) “Action” has the meaning set forth in Section 7.l(g).
(c) “Affiliate” means any Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, a Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management
(d) “Assignment and Assumption Agreement” means the document attached to this Agreement as Exhibit “C” entitled “Assignment and Assumption Agreement”.
(e) “Assumed Liabilities” has the meaning set forth in Section 2.3.
(f) “Bill of Sale” means the document attached to this Agreement as Exhibit “B” entitled as “Bill of Sale”.
(e) “Books and Records” has the meaning set forth in Section 2.1(e).
(g) “Business” means the TacitRed External Attack Surface Management operated by the Seller.
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(k) “Business Day” means any day that is not a Saturday, Sunday or any other day on which banks are required or authorized by law to be closed in the State of North Carolina.
(l) “Buyer” has the meaning set forth in the preamble.
(m) “Closing” has the meaning set forth in Section 6.1.
(n) “Closing Date” has the meaning set forth in Section 6.1.
(o) “Compete” has the meaning set forth in Section 5.1.
(p) “Confidential Information” means information concerning the Business or affairs of Seller to the extent relating solely to the Business, including information relating to customers, clients, suppliers, distributors, investors, lenders, consultants, independent contractors or employees, customer and supplier lists, price lists and pricing policies, cost information, financial statements and information, budgets and projections, business plans, production costs, market research, marketing plans and proposals, sales and distribution strategies, manufacturing and production processes and techniques, processes and business methods, technical information, pending projects and proposals, new business plans and initiatives, research and development projects, inventions, discoveries, ideas, technologies, trade secrets, know-how, formulae, technical data, designs, patterns, marks, names, Intellectual Property Rights, devices, samples, plans, drawings and specifications, photographs and digital images, computer software and programming, all other confidential information and materials relating solely to the Business, and all notes, analyses, compilations, studies, summaries, reports, manuals, documents and other materials prepared by or for Seller containing or based in whole or in part on any of the foregoing, whether in verbal, written, graphic, electronic or any other form and whether or not conceived, developed or prepared in whole or in part by Seller.
(q) “Contract’ means any contract, obligation, understanding, commitment, lease, license, purchase order, bid or other agreement, whether written or oral or whether express or implied, together with all amendments and other modifications thereto.
(r) “Effective Date” has the meaning set forth in the preamble.
(s) “Employee Benefit Plan” means any bonus, deferred compensation, incentive compensation, stock purchase, stock option, severance or termination pay, hospitalization or other medical, life or other insurance, supplemental unemployment benefits, profit-sharing, 40l(k) pension, or retirement plan, program, agreement or arrangement, and each other employee benefit plan, program, agreement or arrangement, sponsored, maintained or contributed to or required to be contributed to by Seller or by any trade or business, whether or not incorporated, that together with Seller would be deemed a “single employer” within the meaning of Section 400l(b)(l) of ERISA, for the benefit of any employee of Seller, whether formal or informal and whether legally binding or not.
(t) “Excluded Liabilities” has the meaning set forth in Section 2.4.
(u) “Initial Cash Payment” has the meaning set forth in Section 3.1.
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(v) “Intellectual Property Rights” means all rights, title, and interest in and to the following, in each case, whether owned by, issued to, used by or licensed to Seller (whether pursuant to a written license or not), related to or used or held for use in connection with the product only: (i) registered and unregistered trademarks, service marks, trade dress, logos, slogans, brands, corporate names, trade names and any other indicia of origin, including the registrations and pending applications therefor, and all goodwill associated therewith; (ii) registered and unregistered copyrights and works of authorship, and all registrations and applications for registration of copyrights; (iii) computer software, including electronic and hard copies of any custom software programs, data, databases, and all related underlying software and documentation; (iv) internet domain names, URL registrations, and related emails, websites and related code, graphics, assets and other properties related thereto as well as all rights associated therewith and corresponding email addresses; (v) accounts, directories, and memberships (whether online, by phone, or by paper) including, but not limited to, all social media accounts and handles; and (vi) trade secrets, Confidential Information, and other proprietary data and information (including, without limitation, compilations of data and whether or not copyrighted or copyrightable), ideas, know-how (including, without limitation, all manufacturing techniques and steps related to and otherwise sufficient to manufacture the products and provide the services of the Business), marketing, information, financial and accounting data, recipes, business and marketing plans, customer and supplier lists and related information..
(w) “Knowledge of Seller” or any other similar knowledge qualification, means the actual knowledge of the officers and directors of Seller.
(x) “Liability” means any liability, obligation or commitment of any kind or nature, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, or due or to become due.
(y) “Liens” has the meaning set forth in Section 2.1.
(z) “Note” means the document attached to this Agreement as Exhibit “D” entitled “Convertible Promissory Note 062025”.
(aa) “Party” and “Parties” have the meaning set forth in the preamble.
(bb) “Person” means any individual, corporation, limited liability company, partnership, company, sole proprietorship, joint venture, trust, estate, association, organization, labor union, governmental body or other entity.
(cc) “Prevailing Party” means that Party who, in light of the issues litigated and the court’s decision on those issues, was determined by the court to be more successful in the action, but need not be the Party who actually received a judgment.
(dd) “Purchase Price” has the meaning set forth in Section 3.1. (ee) “Purchased Assets” has the meaning set forth in Section 2.1.
(ff) “Post Closing Operating Costs” means the costs set forth in Exhibit “E”.
(gg) “Seller” has the meaning set forth in the preamble.
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ARTICLE II
PURCHASE AND SALE
Section 2.1 Purchase and Sale of Purchased Assets. In accordance with the provisions of this Agreement, at Closing Seller shall sell, convey, transfer, assign and deliver to Buyer, and Buyer shall purchase and accept, free and clear of any mortgage, pledge, lien, charge, security interest, claim or other encumbrance (“Liens”), all of Seller’s right, title and interest in and to all of the following assets that are used solely in the operation of the Business (collectively, the “Purchased Assets”):
a) Assets listed in Exhibit “D”.
Section 2.2. Seller shall retain ownership of all assets of the Seller except the Purchased
Assets.
Section 2.3 Assumed Liabilities. Buyer hereby assumes all liabilities arising from or
relating to the Purchased Assets on or after the Closing Date; provided, however, that ▇▇▇▇▇ and Seller agree that Seller will maintain the following TacitRed-related activities from the Closing Date through July 31, 2025. These activities will be invoiced to the Buyer and will be the Buyers responsibility to pay. The costs of these activities are the Post Closing Operating Costs set forth on Exhibit “E”:
1. Employ the following individuals: ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ at no less than 50% time. For avoidance of doubt, these five employees will be offered employment letters by ▇▇▇▇▇ in July for employment with Buyer commencing on August 1, 2025, and will no longer be employees of Seller effective as of August 1, 2025.
2. Pay for, and maintain the two data feeds, DriftNet & Argonne Ridge, until those two contracts are transferred to Buyer on July 31, 2025. Both data contracts will be Buyer liabilities after July 31, 2025.
3. Maintain the hosting of TacitRed (SaaS & website) on AWS and provide the cost of the TacitRed Dev & TacitRed Prod, subaccounts for reimbursement. All operational responsibilities for TacitRed will be Buyer liabilities after August 1, 2025.
▇▇▇▇▇ hereby agrees to assume full responsibility, including direct payment responsibilities, for the foregoing activities commencing on August 1, 2025.
Section 2.4 Excluded Liabilities. All of Seller’s Liabilities, other than the Assumed Liabilities, as of the Closing Date (the “Excluded Liabilities”) will remain the sole responsibility of and will be retained, paid, performed and discharged as and when due by Seller.
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ARTICLE III
PURCHASE PRICE
Section 3.1 Purchase Price; Lockup. The purchase price shall be $2,600.00 Dollars (the
“Purchase Price”) payable by Buyer to Seller on the Closing Date.
Section 3.2 Allocation of Income and Expense.
(a) Without prior approval, the Seller shall not make any payments for any TacitRed related expenses outside of the Post Closing Operating Costs in Exhibit “E”. The Seller retains responsibility for any expenses not included in Exhibit “E”, except for new Buyer-approved expenses.
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ARTICLE IV
CONDITIONS TO CLOSING
Section 4.1 Conditions to Seller’s Obligation. Seller’s obligation to consummate the transactions contemplated by this Agreement is subject to the satisfaction, or Seller’s written waiver, at or prior to the Closing of each of the following conditions:
(a) The representations and warranties of Buyer contained in Section 7.2, shall have been true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct would not have a material adverse effect on Buyer’s ability to consummate the transactions contemplated hereby;
(b) Buyer shall have duly performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of Closing hereunder; and
(c) Buyer shall have delivered to Seller the Purchase Price, duly executed counterparts to the other agreements, instruments and documents required to be delivered at the Closing and such other deliveries of Buyer as set forth in Section 6.3.
Section 4.2 Conditions to Buyer’s Obligation. Buyer’s obligation to consummate this transaction is subject to the satisfaction, or ▇▇▇▇▇’s written waiver, at or prior to Closing or at such other time as specified below of each of the following conditions:
(a) The representations and warranties of Seller contained in Section 7.1 shall be true and correct in all respects as of the Closing Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only as of a specified date, which shall be true and correct in all respects as of that specified date), except where the failure of such representations and warranties to be true and correct would not have a material adverse effect;
(b) Seller shall have duly performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement prior to or as of Closing; and
(c) Seller shall have delivered to Buyer duly executed counterparts to the other agreements, instruments and documents required to be delivered at the Closing and such other deliveries set forth in Section 6.2.
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ARTICLE V
RESTRICTIVE COVENANTS
Section 5.1 Noncompetition. Seller will not create a new business that competes with Buyer in the areas of threat intelligence, attack surface monitoring emails security, or URL categorization, but may sell its platform, Cogynt, to solve cyber-related use cases.
Section 5.2 Confidential Information. Recognizing ▇▇▇▇▇’s need to protect the Goodwill of the Business being purchased and to induce Buyer to purchase the Business and the Purchased Assets, Seller agrees with Buyer that, if the other Person, or for the benefit of any competitor of Seller, or to harm or damage Buyer or the Business, any Confidential Information relating solely to the Business. The covenant contained in this Section 5.2 shall survive for a period of five (5) years following the Closing Date: provided. however, that with respect to those items of Confidential Information relating solely to the Business which constitute trade secrets under applicable law, the obligations of confidentiality and nondisclosure as set forth in this Section 5.2 shall continue to survive after said five-year period to the greatest extent permitted by applicable law. The rights of Buyer contained in this Section 5.2 are in addition to those rights Buyer has under the common law or applicable statutes for the protection of trade secrets.
Section 5.4 Remedies. Seller acknowledges that irreparable loss and injury would result to Buyer or Seller upon any breach of any of the covenants contained in Section 5.1 or Section 5.2 and that damages arising out of such breach would be difficult to ascertain. ▇▇▇▇▇▇ agrees that, in addition to all the remedies provided at law or at equity Buyer may petition and seek from a court of law or equity, without bond, both temporary and permanent injunctive relief to prevent a breach by Seller of any such covenant.
Section 5.5 Reformation. If any court determines that any one or more of the restrictive covenants contained in Section 5.1 or Section 5.2 or any part thereof, is unenforceable because of the duration of such provision or the territory covered thereby, such court shall have the power to reduce the duration or territory of such provisions, and, in its reduced form, such provisions shall then be enforceable and shall be enforced.
Section 5.6 Independence. The covenants of Seller contained in this ARTICLE V shall each be construed as agreements independent of each other and of any other provision in this Agreement and the unenforceability of one shall not affect the remaining covenants.
Section 5.7 Reasonable Restraint. It is agreed by the Parties that the covenants of Seller contained in this ARTICLE V are necessary for the legitimate business interests of ▇▇▇▇▇ and impose a reasonable restraint on Seller in light of the activities and Business of Buyer on the Effective Date.
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ARTICLE VI
CLOSING
Section 6.1 Time and Place. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place no later than June 23, 2025, or such other date mutually agreed to in writing by the Parties (the “Closing Date”).
Section 6.2 Items Delivered by Seller. At the Closing (unless otherwise stated), Seller shall execute, acknowledge (where appropriate) and deliver to Buyer the following:
(a) The Bill of Sale duly executed by ▇▇▇▇▇▇, transferring the Purchased Assets to Buyer;
(b) The Assignment and Assumption Agreement duly executed by Seller, effecting the assignment to and assumption by Buyer of the Purchased Assets and the Assumed Liabilities;
(c) The domain transfer authorization codes from the registrar(s) for ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
(d) Such other appropriate instruments of transfer as Buyer may reasonably request in connection with the transfer to Buyer of the Purchased Assets intended to be conveyed to it hereby.
Section 6.3 Items Delivered by ▇▇▇▇▇. At the Closing, ▇▇▇▇▇ shall duly execute, acknowledge (where appropriate) and deliver to Seller:
(a) The Initial Cash Payment, as prescribed in Section 3.1;
(b) Signed Order Form (Exhibit F)
(c) Signed Convertible Promissory Note 062325 duly executed by ▇▇▇▇▇;
(a) The Assignment & Assumption Agreement duly executed by ▇▇▇▇▇;
(d) The resolutions of Buyer’s board of directors, ▇▇▇▇ adopted and in effect, which authorize the execution, delivery and performance of this Agreement and the transactions contemplated hereby; and
(e) Such other appropriate instruments as Seller may reasonably request in connection with the purchase by Buyer of the Purchased Assets and the transactions
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Section 7.1 Seller Warranties. As of the Closing Date, Seller represents and warrants to Buyer as follows:
(a) Organization and Authority of Seller: Enforceability. Seller is a Delaware Corporation duly organized, validly existing and in good standing under the laws of the state of its organization and has all necessary corporate power and authority to own, operate or lease the properties and assets now owned, operated or leased by it and to carry on the Business as currently conducted. Seller is duly licensed or qualified to do business and is in good standing in each jurisdiction in which the ownership of the Purchased Assets or the operation of the Business as currently conducted makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing would not have a material adverse effect. The execution and delivery by Seller of this Agreement and the performance of its obligations hereunder have been duly authorized by any and all necessary corporate action, and upon execution and delivery by Seller, this Agreement shall constitute the legal, valid and binding obligation of Seller enforceable in accordance with its terms.
(b) No Conflict. The execution, delivery and performance by Seller of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the articles of incorporation, bylaws or other organizational documents of Seller; (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Seller or the Purchased Assets; (c) conflict with, or result in (with or without notice or lapse of time or both) any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any Contract or other instrument to which Seller is a party or to which any of the Purchased Assets are subject; or (d) result in the creation or imposition of any Lien on the Purchased Assets. No consent, approval, waiver or authorization is required to be obtained by Seller from any Person in connection with the execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby.
(c) Title to Purchased Assets; Condition of Assets. Seller has good and marketable title to the Purchased Assets free and clear of all Liens, creditor’s claims, encumbrances on title and third-party interests. The Purchased Assets in good condition and are adequate for the uses to which they are being put, and none of such Purchased Assets are in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost.
(d) Contracts. Seller has delivered to Buyer a correct and complete copy of each written Assumed Contract. Each Assumed Contract, is legal, valid, binding, enforceable, in full force and effect and to the Knowledge of Seller, will continue to be so on identical terms following the Closing Date. Each Assumed Contract, with respect to the other parties to such Assumed Contract is legal, valid, binding, enforceable, in full force and effect and to the Knowledge of Seller, will continue to be so on identical terms following the Closing Date. To the Knowledge of Seller, Seller is not in breach or default, and to the Knowledge of Seller, no event has occurred that with notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under any Assumed Contract. No other party is in breach or default, and no event has occurred, or circumstance exists that with or without notice or lapse of time would constitute a breach or default, or permit termination, modification or acceleration, under any Assumed Contract. No party to any Assumed Contract has repudiated any provision of any Assumed Contract.
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(e) Product and Service Warranties. Each product manufactured by Seller has been in conformity with all applicable contractual commitments and all express and implied warranties. Seller does not have any Liability (and to the Knowledge of Seller, there is no basis for any present or future proceeding against Seller that could give rise to any Liability) for replacement or repair of any such product or service or other damages in connection therewith. No product manufactured, sold, leased or delivered or any service provided by Seller is subject to any guaranty, warranty or indemnity beyond the applicable standard terms and conditions of sale or lease. Seller does not have any Liability, and to the Knowledge of Seller, there is no basis for any present or future proceeding against Seller that could give rise to any Liability, arising out of any injury to any individual or property as a result of the ownership, possession or use of any product manufactured, sold, leased or delivered or any service provided by Seller.
(f) Legal Proceedings. There is no claim, action, suit, proceeding or governmental investigation (“Action”) of any nature pending or, to the Knowledge of Seller, threatened or anticipated against or by Seller (a) relating to or affecting Seller, the Purchased Assets or the Business or any asset owned or used by Seller; or (b) that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.
(g) Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller.
Section 7.2 Buyer’s Representations and Warranties. As of the Effective Date and the Closing Date, Buyer represents and warrants as follows to Seller:
(a) Organization and Authority of Buyer: Enforceability. Buyer is a corporation duly organized, validly existing and in good standing under the laws of the state of its organization, and is duly authorized to carry on its business as presently conducted by it. The execution and delivery by Buyer of this Agreement and the performance by ▇▇▇▇▇ of its obligations hereunder have been duly authorized by any and all necessary corporate action, and upon execution and delivery by Buyer, this Agreement shall constitute the legal, valid and binding obligation of Buyer, enforceable in accordance with its terms.
(b) No Conflict. The execution, delivery and performance by Buyer of this Agreement and the documents to be delivered hereunder, and the consummation of the transactions contemplated hereby, do not and will not: (a) violate or conflict with the articles of incorporation, bylaws or other organizational documents of Buyer; (b) violate or conflict with any judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Buyer; or (c) conflict with, or result in (with or without notice or lapse of time or both) any violation of, or default under, or give rise to a right of termination, acceleration or modification of any obligation or loss of any benefit under any agreement or other instrument to which Buyer is a party. No consent, approval, waiver or authorization is required to be obtained by ▇▇▇▇▇ from any Person in connection with the execution, delivery and performance by ▇▇▇▇▇ of this Agreement and the consummation of the transactions contemplated hereby.
(c) Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Buyer. ▇▇▇▇▇ agrees to indemnify and hold harmless Seller from any losses or liabilities that may arise as a result of any reasonable claims, demands or causes of action for any such fee or commission.
(d) Legal Proceedings. There is no Action of any nature pending or, to the Knowledge of the Buyer, threatened or anticipated against or by Buyer which might prevent or challenge its ability to enter into this Agreement or consummate the transactions contemplated in this Agreement.
(e) Financial Capacity. Buyer is financially solvent, able to pay its debts as they mature and, ▇▇▇▇▇ has committed sources of capital sufficient to pay the Purchase Price when due and otherwise perform its obligations hereunder. To Buyer’s knowledge, there are no facts or circumstances in existence that could reasonably be expected to interfere with, delay or otherwise impede its ability to pay the Purchase Price, when due.
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ARTICLE VIII
ADDITIONAL AGREEMENTS AND COVENANTS
Section 8. l Employees. It is anticipated that ▇▇▇▇▇▇’s five employees who desire to stay on post-Closing will have the opportunity to be employed by ▇▇▇▇▇. However, ▇▇▇▇▇ expressly reserves the right to not offer continued employment to those individuals that ▇▇▇▇▇ reasonably decides to not retain.
Section 8.2 Public Announcement. The Parties agree that no public release or announcement concerning this Agreement or the transactions contemplated hereby shall be issued by any Party without the prior written consent of the other Parties (which consent may not be unreasonably withheld, conditioned or delayed), except for such release or announcement as may be required by law, in which case the Party required to make the release or announcement shall use its reasonable best efforts to allow the other Party reasonable time to comment on such release or announcement in advance of such issuance.
Section 8.3 Payment of Excluded Liabilities. Seller will pay, perform and discharge the Excluded Liabilities as and when due.
Section 8.4 Further Cooperation After Closing. At the request of either Buyer or Seller at any time after the Closing Date, Buyer and Seller shall promptly execute or cause to be executed such documents as shall be reasonably required to effectuate the transfer of the Purchased Assets as contemplated by this Agreement. Such documents may include, without limitation, all those necessary to transfer in accordance with this Agreement all interests of any nature held by Seller in any of the Purchased Assets.
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ARTICLE IX
INDEMNIFICATION
Section 9.1 Survival. Subject to the limitations and other provisions of this Agreement, the representations, warranties, covenants and agreements of the Parties contained herein and all related rights to indemnification shall survive the Closing and shall remain in full force and effect until the date that is eighteen (18) months following the Closing Date. All covenants and agreements of the Parties contained herein shall survive the Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in writing by notice from the Party seeking indemnification under this Agreement to a Party with indemnification obligations under this Agreement prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claim and any other claim(s) reasonably related thereto shall survive until finally resolved as long as such claim is diligently pursued by the Party asserting such claim.
Section 9.2 Indemnification by ▇▇▇▇▇. Buyer shall defend, indemnify and hold harmless Seller, its Affiliates and respective officers, directors, employees and agents from and against any and all claims, judgments, damages, Liabilities, settlements, losses, costs and expenses, including reasonable attorneys’ fees and disbursements, arising from ore relating to:
(a) any breach or inaccuracy, or any allegation of any third party that, if true, would be a breach or inaccuracy, of any representations or warranties of Buyer contained in this Agreement or any document to be delivered hereunder;
(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement or any document to be delivered hereunder;
| (c) | any Assumed Liability; or |
(d) any claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Buyer or any of its Affiliates conducted, existing or arising after the Closing Date.
Seller shall give Buyer reasonably prompt written notice after Seller receives notice of any such matter: provided, however, that Seller’s failure or delay to give a reasonably prompt notice of any such matter shall not release, waive or otherwise affect Buyer’s indemnity obligations with respect to such matter except to the extent that actual loss or prejudice occurs as a result of such failure or delay.
Section 9.3 Indemnification by Seller. Seller shall defend, indemnify and hold harmless Buyer, its Affiliates and their respective officers, directors, employees and agents against and from any and all claims, judgments, damages, Liabilities, settlements, losses, costs and expenses, including reasonable attorneys’ fees and disbursements, arising from or relating to:
(a) Any breach or inaccuracy, or any allegation of any third party that, if true, would be a breach or inaccuracy, of any of the representations or warranties Seller contained in this Agreement;
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(b) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement or any document to be delivered hereunder; or
| (c) | any Excluded Liability |
(d) Buyer shall give Seller reasonably prompt written notice after ▇▇▇▇▇ receives notice of any such matter: provided, however, that Buyer’s failure or delay to give a reasonably prompt notice of any such matter shall not release, waive or otherwise affect Seller’s indemnity obligations with respect to such matter except to the extent that actual loss or prejudice occurs as a result of such failure or delay.
Section 9.4 Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Purchase Price for tax purposes, unless otherwise required by law.
Section 9.5 Effect of Investigation. Buyer’s right to indemnification or other remedy based on the representations, warranties, covenants and agreements of Seller contained herein will not be affected by any investigation conducted by Buyer with respect to, or any knowledge acquired by Buyer at any time, with respect to the accuracy or inaccuracy of or compliance with, any such representation, warranty, covenant or agreement, except that any the liability of the Party to be indemnified for such item shall be eliminated if such item is disclosed completely and accurately in the disclosure schedules to this Agreement.
Section 9.6 Cumulative Remedies. The rights and remedies provided in this ARTICLE IX are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
Section 9.7 Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable for any payment pursuant to this Article IX in excess of $200,000.
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ARTICLE X
MISCELLANEOUS
Section l 0.1 Prevailing Party. In the event a Party institutes legal proceedings to enforce its rights under this Agreement, the prevailing Party in any such proceeding shall be entitled to recover its reasonable attorney fees and court costs from the non-prevailing Party.
Section I0.2 Bulk Sales Laws. Each of Buyer and Seller hereby waives compliance by the other with the bulk sales law of any jurisdiction in connection with the transactions contemplated hereby.
Section l0.4 Transactional Expenses. All costs and expenses incurred in connection with entering into this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such costs and expenses.
Section l 0.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware regardless of conflict of laws principles.
Section l0.6 Time of the Essence. Time is of the essence with respect to this Agreement; provided, however, if any time period or deadline under this Agreement ends on a day other than a Business Day, then the time period shall be extended until the next Business Day.
Section 10.7 No Third-Party Beneficiaries. This Agreement does not confer any rights or remedies upon any Person (including any employee of Seller) other than the Parties, their respective successors and permitted assigns and, as expressly set forth in this Agreement, any indemnified Party.
Section 10.8 Entire Agreement and Modification. This Agreement supersedes all prior agreements, whether written or oral, among the Parties with respect to the subject matter of this Agreement (including any letter of intent and any confidentiality agreement between Buyer and Seller) and constitutes a complete and exclusive statement of the terms of the agreement among the Parties with respect to such subject matter.
Section 10.9 Severability. If any provision of this Agreement is declared void or unenforceable by a final judicial or administrative order, this Agreement shall continue in full force and effect, except that the void or unenforceable provision shall be deemed deleted and replaced with a provision as similar in terms to such void or unenforceable provision as may be possible and be valid and enforceable.
Section 10.10 Binding Effect. All covenants, agreements, warranties and provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, personal representatives, successors and permitted assigns.
| ASSET PURCHASE AGREEMENT-PAGE 14 |
Section l0.11 Notices. Except as otherwise provided herein, all notices, demands or other communications required or permitted to be given hereunder shall be in writing, and any and all such items shall be deemed to have been duly given when delivered in person; or as of the third Business Day after mailing by U.S. mail, certified, return receipt requested, postage prepaid; or as of the immediately following Business Day after deposit with Federal Express or other similar overnight courier service; or if sent via email transmission to the address set forth below, on the day transmitted to the addressee if such day is a Business Day (as hereafter defined) and the notice is transmitted prior to 5:00 p.m. Eastern Time, or if transmitted after 5:00 p.m. Eastern Time on a Business Day, or if transmitted on a non-Business Day, such notice via facsimile shall be deemed effective on the next Business Day. All such notices shall be properly addressed as follows or to such other address or facsimile number that a Party may hereafter designate by sending written notice thereof pursuant to the terms of this section:
If to Buyer:
PO Box 12235
Durham, NC 27709
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CEO
▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
If to Seller:
Cogility Software Corp
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇
Irvine, CA 92618
▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Section 10.12 Headings. The headings of paragraphs and sections of this Agreement are for purposes of convenience and reference and shall not be construed as modifying the paragraphs or sections in which they appear.
Section I 0.13 Waiver. The failure or delay of any Party to insist upon compliance of any provision hereof will not operate as and is not to be construed as a waiver or amendment of the provisions or of the right of the aggrieved Party to insist upon compliance with such provision or to take remedial steps to recover damages or other relief for non-compliance. Any express waiver of a breach of any provision of this Agreement will not operate and is not to be construed as a waiver of any other or subsequent breach, irrespective of whether occurring under similar or dissimilar circumstances.
Section 10.14 Counterparts; Facsimiles. This Agreement may be executed in multiple counterparts, each of which shall serve as an original for all purposes, but all copies shall constitute but one and the same Agreement, binding on all Parties hereto, whether or not each counterpart is executed by all Parties hereto, so long as each Party hereto has executed one or more counterparts hereof. A signed counterpart of this Agreement faxed, or scanned and emailed, by a Party to another Party will constitute delivery by the sending Party to the recipient Party, may be treated by the recipient Party as an original, and will be admissible as evidence of such signed and delivered counterpart.
Section 10.15 Interpretation Presumption. The Parties agree that each has, by counsel or otherwise, actively participated in the finalization of this Agreement and, in the event of a dispute concerning the interpretation of this Agreement or any paragraph or other portion thereof, each Party hereby waives the doctrine that an ambiguity should be interpreted against the Party which has drafted the document or the particular portion thereof.
Section l0.16 No Inducement. The Parties hereto waive any right to assert a claim that they were induced to enter into this Agreement by any representation, fact, occurrence, agreement, promise, statement or warranty made by any Party or any Party’s agent which is not expressly set forth in this Agreement.
[The Remainder of this Page is Left Intentionally Blank] [Signature Page to Follow]
| ASSET PURCHASE AGREEMENT-PAGE 15 |
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| SELLER: | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |
| Title: | CFO | |
| BUYER: | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: | President | |
| ASSET PURCHASE AGREEMENT-PAGE 16 |
EXHIBIT “A”
CONVERTIBLE PROMISSORY NOTE 06232025
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS CONVERTIBLE 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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANIES. THIS SECURITY AND THE SECURITIES ISSUABLE UPON CONVERSION OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
| Original Issue Date: July 1, 2025 | Original Principal Amount: $2,200,000 |
SECURED CONVERTIBLE PROMISSORY NOTE
THIS IS A SECURED CONVERTIBLE PROMISSORY NOTE of Data443 Risk Mitigation, Inc., a Nevada corporation (the “Company”), which represents a duly authorized and validly issued debt of the Company (this “Note”).
FOR VALUE RECEIVED, the Company hereby promises to pay to the order of Cogility Software Corp (the “Holder”), or its registered assigns, the principal sum of $2,200,000.00 (the “Principal Amount”) and to pay interest on the unpaid principal balance hereof at the rate of ten percent (10%) (the “Interest Rate”) per annum, compounded annually, from the date hereof (the “Original Issue Date”),. Unless extended in the manner set forth herein below, the Principal Amount shall be due and payable on the earlier of (i) June 30, 2026 or (ii) the Uplisting Date (as defined herein) (the “Maturity Date”), or such earlier date as this Note is required or permitted to be repaid as provided hereunder. If the Company and the Holder so agree in writing and all accrued interest has been paid in full, the Maturity Date may be extended for up to two additional twelve (12)-month period that will expire on June 30, 2027 and June 30, 2028, respectively, such that the Principal Amount shall be due and payable on such date, or on such earlier date as this Note is required or permitted to be repaid as provided hereunder.
The Company and the Holder (collectively, the “Parties” and each a “Party”) that the Principal Amount has been advanced by the Holder to the Company on the Issue Date by extending to the Company a royalty-free license to certain software, specifically Cogynt license - Tier XV (>13M Entities of Interest) with a term of 12 months, which the parties agree to have a value equal to the Principal Amount
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| ● | Interest - Interest shall begin to accrue on the date of this Note at the rate of 10% per annum, compounded annually, and shall continue to accrue on the outstanding principal until the entire balance of Principal Amount and accrued interest is paid (or converted, as provided in Article V hereof) and shall be computed based on the actual number of days elapsed and on a year of three hundred sixty-five (365) days. Accrued interest will be paid in full no later than each anniversary of the Issue Date, for so long as this Note is outstanding. |
| ● | Security –This Note will be secured by a lien (the “Lien”) on all certain assets of the Company (the “Collateral”) pursuant to a Security Agreement of even or near even date herewith (the “Security Agreement”) by and between the Company and the Holder, and on the terms and conditions set forth therein. The Collateral subject to the Lien include the Purchased Assets (as defined in Schedule A) and all Accounts Receivable generated by Threat Intelligence product sales (inclusive of Cyren and Data433 as sold together or separate). |
| ● | Ranking. Holder acknowledges and agrees and the Company covenants and agrees, for itself, its successors and assigns, notwithstanding the date of the respective dates of attachment or perfection of Holder’s security interest in and to all or a portion of the Collateral that this Note and each other Note issued to the Holder will be senior in priority to the obligations to pay the principal of, and interest on, all other obligations and liabilities of the Company arising under instruments, facilities, or agreements of the Company. |
| ● | Right to Amend – The Company agrees and covenants that in the event that any class of preferred stock of the Company (“Preferred Shares”) is authorized or issued on or prior to December 31, 2025, (i) the Company shall promptly give written notice of the foregoing to the Holder, and (ii) if so elected by the Holder by written notice to the Company, this Note shall become convertible into an equal number of such Preferred Shares as the number of shares of Common Stock into which this Note was previously convertible, and all references herein to shares of Common Stock of the Company shall be deemed to instead refer to such Preferred Shares. The terms associated with such Preferred Shares will be at least as favorable as the terms associated with any such Preferred Shares issued or sold to any purchaser thereof. |
Section 1. Definitions. For the purposes hereof, in addition to the terms defined elsewhere in this Note, following terms shall have the following meanings:
“Alternate Consideration” shall have the meaning set forth in Section 5(f).
“Bankruptcy Event” means any of the following events: (a) the Company (as such term is defined in Rule 1-02(w) of Regulation S-X) thereof commences a case or other proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction relating to the Company , (b) there is commenced against the Company any such case or proceeding that is not dismissed within 60 days after commencement, (c) the Company is adjudicated insolvent or bankrupt or any order of relief or other order approving any such case or proceeding is entered, (d) the Company suffers any appointment of any custodian or the like for it or any substantial part of its property that is not discharged or stayed within 60 calendar days after such appointment, (e) the Company makes a general assignment for the benefit of creditors, (f) the Company calls a meeting of its creditors with a view to arranging a composition, adjustment or restructuring of its debts or (g) the Company, by any act or failure to act, expressly indicates its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action for the purpose of effecting any of the foregoing. “Beneficial Ownership Limitation” shall have the meaning set forth in Section 4(f). “Buy-In” shall have the meaning set forth in Section 4(e)(v).
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“Change of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Company, by contract or otherwise) of in excess of fifty percent (50%) of the voting securities of the Company (other than by means of conversion or exercise of this Notes and the Securities issued together with this Notes); (b) the Company merges into or consolidates with any other Person, or any Person merges into or consolidates with the Company and, after giving effect to such transaction, the stockholders of the Company immediately prior to such transaction own less than fifty percent (50%) of the aggregate voting power of the Company or the successor entity of such transaction; (c) the Company sells or transfers all or substantially all of its assets to another Person and the stockholders of the Company immediately prior to such transaction own less than fifty percent (50%) of the aggregate voting power of the acquiring entity immediately after the transaction; (d) a replacement at one time or within a three year period of more than one-half of the members of the Board of Directors which is not approved by a majority of those individuals who are members of the Board of Directors on the Original Issue Date (or by those individuals who are serving as members of the Board of Directors on any date whose nomination to the Board of Directors was approved by a majority of the members of the Board of Directors who are members on the date hereof); or (e) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) through (d) above.
“Clearing Date” shall be the date when the Holder has commenced selling the converted shares.
“Conversion” shall have the meaning ascribed to such term in Section 4.
“Conversion Date” shall have the meaning set forth in Section 4(a).
“Conversion Amount” shall have the meaning set forth in Section 4(a).
“Conversion Price” shall have the meaning set forth in Section 4(b).
“Conversion Schedule” means the Conversion Schedule in the form of Schedule 1 attached hereto.
“Conversion Shares” means, collectively, the shares of Common Stock issuable upon conversion of this Note in accordance with the terms hereof.
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“Default Conversion Price” shall have the meaning set forth in Section 5(c).
“Delaware Courts” shall have the meaning set forth in Section 9(d).
“Dilutive Issuance” shall have the meaning set forth in Section 5(b).
“Dilutive Issuance Notice” shall have the meaning set forth in Section 5(b).
“DTC” means the Depository Trust Company.
“DTC/FAST Program” means the DTC’s Fast Automated Securities Transfer Program.
“DWAC Eligible” means that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements, including without limitation transfer through DTC’s DWAC system, (b) the Company has been approved (without revocation) by the DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST Program, (d) the Conversion Shares are otherwise eligible for delivery via DWAC, and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Conversion Shares via DWAC.
“Equity Conditions” means, during the period in question, (a) no Event of Default shall have occurred, (b) the Company has timely filed (or obtained extensions in respect thereof and filed within the applicable grace period) all reports other than Form 8-K reports required to be filed by the Company after the date hereof pursuant to the Exchange Act and the Company has met the current public information requirements of Rule 144(c) under the Securities Act as of the end of the period in question, (c) on any date that the Company desires to make a payment of principal in shares of Common Stock instead of cash, the average daily dollar volume of the Company’s common stock for the previous twenty (20) trading days must be greater than $10,000, and (d) the Company’s shares of common stock must be DWAC Eligible and not subject to a “DTC chill”.
“Event of Default” shall have the meaning set forth in Section 6(a).
“Exchange Act” means, the Security Exchange Act of 1934, as amended.
“Fundamental Transaction” shall have the meaning set forth in Section 5(f).
“Lowest Trading Price” shall have the meaning set forth in Section 4(c).
“Mandatory Default Amount” means the payment of 120% of the outstanding Principal Amount of this Note, plus all accrued and unpaid interest, plus all other amounts, costs, expenses, and liquidated damages due in respect of this Note.
“Note Register” shall mean the register maintained by the Company, which includes a list of the names and addresses of each Holder, as well as the outstanding principal amount and interest amount owing to such Holder from time to time.
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“Notice of Conversion” shall have the meaning set forth in Section 4(a).
“Original Issue Date” means the date of the first issuance of this Note, regardless of any transfers of any Note and regardless of the number of instruments that may be issued to evidence such Notes.
“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.
“Qualified Eligible Market” means The New York Stock Exchange, The Nasdaq Global Market, The Nasdaq Global Select Market, The Nasdaq Capital Market or the NYSE American.
“Reporting Service” shall have the meaning set forth in Section 4(c).
“Required Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future pursuant to this Note, including any Conversion Shares issuable upon conversion in full of this Note, ignoring any conversion limits set forth therein.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Share Delivery Date” shall have the meaning set forth in Section 4(e)(ii).
“Successor Entity” shall have the meaning set forth in Section 5(f).
“Trading Day(s)” shall mean any day(s) on which the Common Stock is quotable for any period on the OTC, or tradable on the principal securities exchange or other securities market on which the Common Stock is then being traded.
“Trading Price” shall mean the average of the VWAP for the ten (10) Trading Days following the Clearing Date.
“Uplisting Date” means the date the Common Stock is admitted for trading on a Qualified Eligible Market.
“VWAP” means volume-weighted average selling price for the applicable time period.
Section 2. Pre-Payment. The Company may, in its sole discretion, pre-pay amounts owed under the Note prior to the Maturity Date by providing the Holder with written notice at least ten (15) Trading Days prior to such pre-payment. During the 15 Trading Day notice period the Holder may elect to convert the Note (or the portion thereof to be prepaid) into shares of Common Stock pursuant to Section 4(a) hereof, in which case no such prepayment shall occur. In the case of such pre-payment, the Company shall pay a premium equal to 5% of the principal amount being pre-paid.
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Section 3. Registration of Transfers and Exchanges.
a) Investment Representations. This Note may be transferred or exchanged only in compliance with applicable federal and state securities laws and regulations.
b) Reliance on Note Register. Prior to due presentment for transfer to the Company of this Note, the Company and any agent of the Company may treat the Person in whose name this Note is duly registered on this Note Register as the owner hereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue, and neither the Company nor any such agent shall be affected by notice to the contrary.
Section 4. Conversion.
(a) Voluntary Conversion. At any time after the Original Issue Date until this Note is no longer outstanding, this Note shall be convertible, in whole or in part, into shares of Common Stock at the option of the Holder, at any time and from time to time (subject to the conversion limitations set forth in Section 4(e) hereof). The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the Principal Amount of this Note to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Company unless the entire Principal Amount of this Note, has been so converted. Upon such conversion, the Company will automatically issue to the Holder a number of shares of Common Stock equal to the amount of principal and/or accrued interest the Holder has elected to convert (the “Conversion Amount”) divided by the Conversion Price (as defined below). Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to the applicable conversion. The Holder and the Company shall maintain a Conversion Schedule showing the Principal Amount(s) converted and the date of such conversion(s). The Holder, and any assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted Principal Amount of this Note may be less than the amount stated on the face hereof.
(b) Conversion Price. Subject to Section 4(c) below, the Conversion Price shall mean 80% multiplied by the lowest Trading Price (representing a 20% Discount) for the Common Stock during the twenty (20) Trading Day-period ending on the latest complete Trading Day prior to the Conversion Date, but in no event less than to $0.0001 per share (as adjusted for stock splits and similar events). “Lowest Trading Price” means, for any security as of any date, the lowest traded price on the relevant tier of the OTC Markets Group Inc. electronic quotation system (the “OTC”) as reported by a reliable reporting service (the “Reporting Service”) designated by the Holder (i.e., Bloomberg) or, if the OTC is not the principal trading market for such security, the closing bid price of such security on the principal securities exchange or trading market where such security is then listed or traded or, if no closing bid price of such security is available in any of the foregoing manners, the average of the closing bid prices of any market makers for such security that are reported in the “grey market.”
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(c) Default Conversion Price. Notwithstanding Section 4 ( b) above, at the Holder’s option, if the Company is in default of any provisions of this Note, the Holder may select the following as the conversion Price (the “Default Conversion Price”) : 70% multiplied by the Lowest Trading Price (representing a 30% Discount) for the Common Stock during the twenty (20) Trading Day-period ending on the latest complete Trading Day prior to the Conversion Date. “Lowest Trading Price” means, for any security as of any date, the lowest traded price on the relevant tier of the OTC Markets Group Inc. electronic quotation system (the “OTC”) as reported by a reliable reporting service (the “Reporting Service”) designated by the Holder (i.e., Bloomberg) or, if the OTC is not the principal trading market for such security, the closing bid price of such security on the principal securities exchange or trading market where such security is then listed or traded or, if no closing bid price of such security is available in any of the foregoing manners, the average of the closing bid prices of any market makers for such security that are reported in the “grey market.”
a) Automatic Conversion. This Note shall automatically be converted into shares of Common Stock (an “Automatic Conversion”) upon (x) the listing of Common Stock on a Qualified Eligible Market and (y) in connection with, but not later than, the listing of the Common Stock on a Qualified Eligible Market, the consummation by the Company of a firm commitment underwritten public offering of Common Stock and/or Common Stock Equivalents of the Company pursuant to an effective registration statement under the Securities Act, that results in gross proceeds to the Company of not less than $5 million; provided, that the Holder may waive the requirement set forth in this clause (y) (a “Qualified Public Offering”). The Automatic Conversion shall be effected pursuant to Section 4 using a Conversion Price that is equal to the lowest of (i) the then-effective applicable Conversion Price, (ii) 80% of the arithmetic average of the VWAPs of the Common Stock during the three Trading Days immediately prior to the Uplisting Date and (iii) the price per share at which shares of Common Stock are sold in the Qualified Public Offering, if any (which, for the avoidance of doubt, if more than one security is issued to an investor in connection therewith, will be deemed to be the “unit price”). This Note shall be converted automatically on the Uplisting Date, which date, for the avoidance of doubt, shall be deemed a Conversion Date for all purposes under this Note, without any further action by the Holder and whether or not this Note is surrendered to the Company or its Transfer Agent; provided that no such conversion shall occur unless the Common Stock issuable upon conversion of this Note have been registered under the Securities Act or are exempt from the registration requirements of the Securities Act. Upon the occurrence of such Automatic Conversion of this Note, including, without limitation, the delivery of the applicable Conversion Shares, this Note will be deemed converted in full on the Uplisting Date, and the Holder shall be deemed to have surrendered such Note to the Company.
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| b) | Mechanics of Conversion. |
i. Delivery of Certificate Upon Conversion. Not later than two (2) Trading Days after each Conversion Date (the “Share Delivery Date”), the Company shall deliver, or cause to be delivered, to the Holder (A) a certificate or certificates representing the Conversion Shares which, on or after the date on which such Conversion Shares are eligible to be sold under Rule 144 without the need for current public information and the Company has received an opinion of counsel to such effect reasonably acceptable to the Company (which opinion the Company will be responsible for obtaining at the cost of the Holder) shall be free of restrictive legends and trading restrictions, representing the number of Conversion Shares being acquired upon the conversion of this Note. All certificate or certificates required to be delivered by the Company under this Section 4(e) shall be delivered electronically through the DTC or another established clearing corporation performing similar functions. If the Conversion Date is prior to the date on which such Conversion Shares are eligible to be sold under Rule 144 without the need for current public information the Conversion Shares shall bear a restrictive legend in the following form, as appropriate:
“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
(II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
Notwithstanding the foregoing, commencing on such date that the Conversion Shares are eligible for sale under Rule 144 subject to current public information requirements, the Company, upon request and at the expense of the Company, shall obtain a legal opinion to allow for such sales under Rule 144.
ii. Failure to Deliver Certificates. If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on or before its receipt of such certificate or certificates, to rescind such Conversion, in which event the Company shall promptly return to the Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates issued to such Holder pursuant to the rescinded Conversion Notice.
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iii. Obligation Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of law by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Holder. In the event the Holder of this Note shall elect to convert any or all of the outstanding principal, the Company may not refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note shall have been sought. If the injunction is not granted, the Company shall promptly comply with all conversion obligations herein. If the injunction is obtained, the Company must post a surety bond for the benefit of the Holder in the amount of 150% of the outstanding Principal Amount of this Note, which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Holder to the extent it obtains judgment. In the absence of seeking such injunction, the Company shall issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion. If the Company fails for any reason to deliver to the Holder such certificate or certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, $1,000 per Trading Day for each Trading Day after such Share Delivery Date until such certificates are delivered or Holder rescinds such conversion. Nothing herein shall limit a ▇▇▇▇▇▇’s right to pursue actual damages or declare an Event of Default pursuant to Section 6 hereof for the Company’s failure to deliver Conversion Shares within the period specified herein and the Holder shall have the right to pursue all remedies available tit hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.
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| iv. | Compensation for Buy-In on Failure to Timely Deliver Certificates Upon Conversion. In addition to any other rights available to the Holder, if the Company fails for any reason to deliver to the Holder such certificate or certificates by the Share Delivery Date pursuant to Section 4(c)(ii), and if after such Share Delivery Date the Holder is required by its brokerage firm 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 Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of the Holder, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements under Section 4(c)(ii). 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 conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total 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 ▇▇▇▇▇▇’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 certificates representing shares of Common Stock upon conversion of this Note as required pursuant to the terms hereof. |
v. Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock a number of shares of Common Stock at least equal to 200% of the Required Minimum (the “Reserve Amount”) for the sole purpose of issuance upon conversion of this Note, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of this Notes). The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if a registration statement covering the resale of the Conversion Shares is then effective under the Securities Act, shall be registered for public resale in accordance with such registration statement and shall not be subject to any lock up provisions.
vi. Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, 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 Conversion Price or round up to the next whole share.
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vii. Transfer Taxes and Expenses. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates, provided that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares. The Company shall pay all attorney fees required for the issuance of attorney legal opinions for removal of restrictive legends on Conversion Shares.
c) ▇▇▇▇▇▇’s Conversion Limitations. The Company shall not effect any conversion of principal, and a Holder shall not have the right to convert any principal of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any of the Holder’s Affiliates) 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 shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Principal Amount of this Note beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes) beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 4(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 4(f) applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates) and of which Principal Amount of this Note is convertible shall be in the sole discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates) and which Principal Amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph 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 4(f), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s 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 two Trading Days 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 Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note held by the Holder. The Holder, upon not less than sixty-one (61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 4(f), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 4(f) shall continue to apply. Any such increase or decrease will not be effective until the sixty-first (61st) calendar day after such notice is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 4(f) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein 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 Note.
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Section 5. Certain Adjustments.
a) Stock Dividends and Stock Splits. If the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon conversion of this Notes), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 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) Dilution. The Company specifically acknowledges that its obligation to issue the Common Stock is binding upon the Company and enforceable regardless of the dilution such issuance may have on the ownership interests of other shareholders of the Company.
c) Subsequent Equity Sales. Other than with respect to a Qualified Public Offering, if at any time while this Note is outstanding, the Company issues or sells, announces any offer, sale, or other disposition of, or in accordance with this Section 5 is deemed to have issued, sold or granted (or makes an announcement regarding the same), any shares of Common Stock and/or Common Stock Equivalents (including the issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any securities issued or sold or deemed to have been issued or sold solely in connection with an Exempt Issuance) for a consideration per share (the “New Issuance Price”) less than a price equal to the Conversion Price in effect immediately prior to such issuance or sale or deemed issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price; provided, however, that the foregoing adjustment shall only be in effect one time only. For all purposes of the foregoing (including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section 5(b)), the following shall be applicable:
i. Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options (as defined below) and the lowest price per share for which one Common Stock is at any time issuable upon the exercise of any such Option (as defined below) or upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of any such Option (as defined below) or otherwise pursuant to the terms thereof is less than the Applicable Price, then such Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option (as defined below) for such price per share. For purposes of this Section 5(c)(i), the “lowest price per share for which one Common Stock is at any time issuable upon the exercise of any such Options (as defined below) or upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of any such Option (as defined below) or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale of such Option (as defined below), upon exercise of such Option (as defined below) and upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of such Option (as defined below) or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option (as defined below) for which one Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options (as defined below) or upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of any such Option (as defined below) or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) upon the granting, issuance or sale of such Option (as defined below), upon exercise of such Option (as defined below) and upon conversion, exercise or exchange of any Common Stock Equivalents issuable upon exercise of such Option (as defined below) or otherwise pursuant to the terms thereof plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Option (as defined below) (or any other Person). Except as contemplated below, no further adjustment of the Conversion Price shall be made upon the actual issuance of such shares of Common Stock or of such Common Stock Equivalents upon the exercise of such Options (as defined below) or otherwise pursuant to the terms of or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Common Stock Equivalents. “Option” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities. “Convertible Securities” means any shares or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.
ii. Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Common Stock Equivalents and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such shares of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale of such Common Stock Equivalents for such price per share. For the purposes of this Section 5(c)(ii), the “lowest price per share for which one Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one Common Stock upon the issuance or sale of the Common Stock Equivalents and upon conversion, exercise or exchange of such Common Stock Equivalents or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Common Stock Equivalents for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such Common Stock Equivalents (or any other Person) upon the issuance or sale of such Common Stock Equivalents plus the value of any other consideration received or receivable by, or benefit conferred on, the holder of such Common Stock Equivalents (or any other Person). Except as contemplated below, no further adjustment of the Conversion Price shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Common Stock Equivalents or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Common Stock Equivalents is made upon exercise of any Options for which adjustment of this Note has been or is to be made pursuant to other provisions of this Section 5(b), except as contemplated below, no further adjustment of the Conversion Price shall be made by reason of such issuance or sale.
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iii. Change in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Common Stock Equivalents, or the rate at which any Common Stock Equivalents are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 5(a)), the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at such time had such Options or Common Stock Equivalents provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes of this Section 5(c)(iii), if the terms of any Option or Common Stock Equivalents that was outstanding as of the date this Note was issued are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Common Stock Equivalents and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 5(c) shall be made if such adjustment would result in an increase of the Conversion Price then in effect.
iv. Change in Option Price or Rate of Conversion. If any Option and/or Common Stock Equivalents and/or Adjustment Right (as defined below) is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”, and such Option and/or Common Stock Equivalents and/or Adjustment Right (as defined below), the “Secondary Securities”), together comprising one integrated transaction, (or one or more transactions if such issuances or sales or deemed issuances or sales of securities of the Company either (A) have at least one investor or purchaser in common, (B) are consummated in reasonable proximity to each other and/or (C) are consummated under the same plan of financing) the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be equal to the difference of (x) the lowest price per share for which one Common Stock was issued (or was deemed to be issued pursuant to Section 5(c)(i) or 5(c)(ii) above, as applicable) in such integrated transaction solely with respect to such Primary Security, minus (y) with respect to such Secondary Securities, the sum of the fair market value (as determined by the Holder in good faith) and the fair market value (as determined by the Holder) of such Common Stock Equivalents, if any, in each case, as determined on a per share basis in accordance with this Section 5(c)(iv). If any shares of Common Stock, Options or Common Stock Equivalents are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Common Stock Equivalents are issued or sold for a consideration other than cash, the amount of such consideration received by the Company will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Common Stock Equivalents are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Common Stock Equivalents (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company). “Adjustment Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale hereunder) of Common Stock that could result in a decrease in the net consideration received by the Company in connection with, or with respect to, such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).
v. Change in Option Price or Rate of Conversion. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Common Stock Equivalents or (B) to subscribe for or purchase shares of Common Stock, Options or Common Stock Equivalents, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
d) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 5(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 conversion of this Note (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, 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).
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e) Pro Rata Distributions. During such time as this Note 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) (a “Distribution”), at any time after the issuance of this Note, 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 Note (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, 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).
f) Fundamental Transaction. If, at any time while this Note 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, 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 fifty percent (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, (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 or scheme of arrangement) with another Person whereby such other Person acquires more than fifty percent (50%) 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 conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 4(f) on the conversion of this Note), 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 Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 4(f) on the conversion of this Note). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Conversion 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 conversion of this Note 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 Note and any document ancillary hereto, in accordance with the provisions of this Section 5(f) 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 of this Note, deliver to the Holder in exchange for this Note a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Note which is convertible 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 conversion of this Note (without regard to any limitations on the conversion of this Note) prior to such Fundamental Transaction, and with a conversion price which applies the conversion 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 conversion price being for the purpose of protecting the economic value of this Note 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 Note 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 Note with the same effect as if such Successor Entity had been named as the Company herein.
g) Calculations. All calculations under this Section 5 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 5, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding.
| h) | Notice to the Holder. |
vi. Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall promptly deliver to the Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
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vii. Notice to Allow Conversion by ▇▇▇▇▇▇. 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 of 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 the assets of the Company, 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 filed at each office or agency maintained for the purpose of conversion of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear upon this Note Register, 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. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert this Note during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 6. Events of Default.
a) “Event of Default” means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary or effected by operation of law or pursuant to any judgment, decree or order of any court, or any order, rule or regulation of any administrative or governmental body):
i. Any default in the payment of principal due hereunder which failure is not cured within five (5) Trading Days after such failure;
ii. the Company shall fail to observe or perform any other covenant, provision, or agreement contained in this Note (and other than a breach by the Company of its obligations to deliver shares of Common Stock to the Holder upon conversion, which breach is addressed in clause (x) below) which failure is not cured, if possible to cure, within the earlier to occur of (A) three (3) Trading Days after notice of such failure sent by the Holder or by any other Holder to the Company and (B) five (5) Trading Days after the Company has become or should have become aware of such failure;
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iii. any representation or warranty made in this Note, any written statement pursuant hereto or thereto or any other report, financial statement or certificate made or delivered to the Holder or any other Holder shall be untrue or incorrect in any material respect as of the date when made or deemed made;
iv. the Company (as such term is defined in Rule 1-02(w) of Regulation S-X) shall be subject to a Bankruptcy Event;
v. following the Public Company Event, the Common Stock shall not be eligible for listing or quotation for trading on a Trading Market and shall not be eligible to resume listing or quotation for trading thereon within five (5) Trading Days or the transfer of shares of Common Stock through the DTC’s DWAC System is no longer available or “chilled”;
vi. the Company shall be a party to any Change of Control Transaction or Fundamental Transaction (A) without first giving the Holder ten (10) days’ prior written notice of the closing of such Change of Control Transaction or Fundamental Transaction and (B) prior to or simultaneous with the closing of such Change of Control Transaction or Fundamental Transaction, the Holder is not repaid in accordance with Section 2(d) herein;
vii. the Company does not meet the current public information requirements under Rule 144;
viii. the Company shall fail for any reason to deliver certificates to a Holder prior to the third (3rd) Trading Day after a Conversion Date pursuant to Section 4(c) or the Company shall provide at any time notice to the Holder, including by way of public announcement, of the Company’s intention to not honor requests for conversions of this Note in accordance with the terms hereof;
ix. the Company fails to file with the Commission any required reports under Section 13 or 15(d) of the Exchange Act such that it is not in compliance with Rule 144(c)(1) (or Rule 144(i)(2), if applicable);
x. the Company shall: (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of it or any of its properties; (ii) admit in writing its inability to pay its debts as they mature; (iii) make a general assignment for the benefit of creditors; (iv) be adjudicated a bankrupt or insolvent or be the subject of an order for relief under Title 11 of the United States Code or any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute of any other jurisdiction or foreign country; or (v) file a voluntary petition in bankruptcy, or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage or any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, or (vi) take or permit to be taken any action in furtherance of or for the purpose of effecting any of the foregoing;
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xi. if any order, judgment or decree shall be entered, without the application, approval or consent of the Company , by any court of competent jurisdiction, approving a petition seeking liquidation or reorganization of the Company, or appointing a receiver, trustee, custodian or liquidator of the Company , or of all or any substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) days;
xii. the occurrence of any levy upon or seizure or attachment of, or any uninsured loss of or damage to, any property of the Company having an aggregate fair value or repair cost (as the case may be) in excess of $4 million individually or in the aggregate, and any such levy, seizure or attachment shall not be set aside, bonded or discharged within thirty (30) days after the date thereof;
| xiii. | the Company shall fail to maintain the Reserve Amount; |
xiv. any monetary judgment, writ or similar final process shall be entered or filed against the Company, or any of their respective property or other assets for more than $4 million, and such judgment, writ or similar final process shall remain unvacated, unbonded, or unstayed for a period of forty-five (45) calendar days;
xv. The Company shall fail to comply with the “use of proceeds” of this Note as set forth in Section 9(j);
xvi. The Company fails to pay for, including a 30 day cure period, the Support Plan in the Order Form (See APA dated 6/18/25)
xvii. The Company fails to issue to the Holder by no later than June 1, 2026 a second secured convertible promissory note with in a form identical to this Note and with a principal amount of $1,700,000 in respect of license fees for the second 12-month term of the Cogynt license - Tier XIV (13M Entities of Interest) granted to the Company (provided that the Company may elect to pay the foregoing principal amount to the Holder in cash in lieu of issuing such second convertible promissory note).
b) Remedies upon Event of Default. Subject to the Beneficial Ownership Limitation as set forth in Section 4(f), if any Event of Default occurs, then the outstanding Principal Amount of this Note, and other amounts owing in respect thereof through the date of acceleration, shall become, at the Holder’s election, immediately due and payable at the Holder’s option, in cash or in shares of Common Stock (subject to the Equity Conditions being satisfied), at the Mandatory Default Amount. Upon the payment in full of the Mandatory Default Amount in cash or in shares of Common, the Holder shall promptly surrender this Note to or as directed by the Company. In addition, if an Event of Default occurs, Company agrees, at ▇▇▇▇▇▇’s election, to pay all reasonable costs of collection when incurred, including without limitation, reasonable attorneys’ fees, expenses and court costs, subject to any limitation imposed by applicable law. In connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind (other than the Holder’s election to declare such acceleration), and the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to it under applicable law. Such acceleration may be rescinded and annulled by ▇▇▇▇▇▇ at any time prior to payment hereunder and the Holder shall have all rights as a holder of this Note until such time, if any, as the Holder receives full payment pursuant to this Section 6(b). No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon.
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Section 7. Negative Covenants. As long as any portion of this Note remains outstanding, unless the Holder shall have otherwise given prior written consent, the Company shall not directly or indirectly:
a) amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially and adversely affects any rights of the Holder;
b) repay, repurchase or offer to repay, repurchase or otherwise acquire any Indebtedness, other than the Notes if on a pro-rata basis, other than regularly scheduled principal and interest payments as such terms are in effect as of the Original Issue Date;
c) enter into any transaction with any Affiliate of the Company which would be required to be disclosed in any public filing with the Commission, unless such transaction is made on an arm’s-length basis and expressly approved by a majority of the disinterested directors of the Company (even if less than a quorum otherwise required for board approval); or
d) enter into any agreement with respect to any of the foregoing.
Section 8. Most Favored Nation. While this Note or any principal amount, interest or fees or expenses due hereunder remain outstanding and unpaid, in the event the Company proposes to issue or sell any other debt or other instrument convertible into or exchangeable for shares of capital stock of the Company (a “Subsequent Financing”), then (i) the Company shall deliver written notice of such Subsequent Financing to the Holder, including disclosure of all material terms and conditions of such Subsequent Financing, and (ii) the Holder shall be entitled to elect to cause the terms and conditions of this Note to be amended to match the terms and condition offered in connection with such Subsequent Financing.
Section 9. Miscellaneous.
a) Notices. Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by email or facsimile, or sent by a nationally recognized overnight courier service, addressed to the Company, at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other email address, facsimile number, or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 9(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by email or facsimile, or sent by a nationally recognized overnight courier service addressed to each Holder at the email address, facsimile number, or address of the Holder appearing on the books of the Company, or if no such email address, facsimile number, or address appears on the books of the Company, at the principal place of business of such Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto prior to 12:00 noon (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 12:00 noon (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.
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b) Absolute Obligation. Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, liquidated damages, on this Note at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company. This Note ranks pari passu with all other Notes now or hereafter issued under the terms set forth herein.
c) Lost or Mutilated Note. If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the Principal Amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of the ownership hereof, reasonably satisfactory to the Company.
d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Note shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Note (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the State of Delaware (the “Delaware Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the Delaware Courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), 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 such Delaware Courts, or such Delaware Courts are improper or 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 Note 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 applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Note or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Note, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation, and prosecution of such action or proceeding.
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e) Waiver. Any waiver by the Company or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Company or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion. Any waiver by the Company or the Holder must be in writing.
f) Severability. If any provision of this Note is invalid, illegal, or unenforceable, the balance of this Note shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances.
g) Remedies, Characterizations, Other Obligations, Breaches, and Injunctive Relief. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. The Company shall provide all information and documentation to the Holder that is reasonably requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note.
h) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
i) Headings. The headings contained herein are for convenience only, do not constitute a part of this Note and shall not be deemed to limit or affect any of the provisions hereof.
j) Use of Proceeds. The gross proceeds of the funding to the Company related to this Note shall be used as agreed.
k) Amendments; Waivers. Any term of this Note may be amended or waived only with the written consent of (i) the Company and (ii) the Holder.
Notwithstanding anything to the contrary contained in any of the Transaction Documents or any other transaction document between any Company and the Holder or any Affiliate of the Holder, to the extent there be an allocation of cash flow to pay off any obligation any Company, such cash flow shall be first allocated to pay off the Company’s obligations under this Note.
(Signature Page follows)
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by a duly authorized officer as of the date first above indicated.
| DATA443 RISK MITIGATION, INC. | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: | CEO | |
| email address for delivery of Notices: | |
| ▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ |
| 21 |
ANNEX A
NOTICE OF CONVERSION
The undersigned hereby elects to convert principal under the Convertible Promissory Note, due ___________________ of Data443 Risk Mitigation, Inc. (the “Company”) into shares of common stock (the “Common Stock”) of the Company according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Companies in accordance therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.
By the delivery of this Notice of Conversion the undersigned represents and warrants to the Companies that its ownership of the Common Stock does not exceed the amounts specified under Section 4 of this Note, as determined in accordance with Section 13(d) of the Exchange Act.
The undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock.
| Conversion calculations: | |
| Date to Effect Conversion: | |
| Principal Amount of Note to be Converted: | |
| Number of shares of Common Stock to be issued: | |
| Signature: | |
| Name: | |
| Delivery Instructions: | |
Schedule 1
CONVERSION SCHEDULE
This Convertible Promissory Note, due on ___________________, in the original principal amount of $2,2000,000 is issued by Data443 Risk Mitigation, Inc. (the “Company”). This Conversion Schedule with respect to the Common Stock of the Company reflects conversions made under Section 4 of the above referenced Note.
Dated:
Date
of Conversion |
Amount of Conversion | Aggregate
Principal Amount Remaining Subsequent to Conversion |
Company’s Attest | |||
EXHIBIT “B”
BILL OF SALE
THIS BILL OF SALE (this “Bill of Sale”) is issued by COGILITY SOFTWARE CORPORATION, (“Seller”) to DATA443 RISK MITIGATION, INC., (“Buyer”), as of this 23rd day of June 2025 (the “Effective Date”), pursuant to that certain Asset Purchase Agreement dated as of the Effective Date by and among Seller and Buyer (as such agreement may be amended, modified and/or supplemented in accordance with its terms, the “Purchase Agreement”). Capitalized terms used in this Bill of Sale but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.
1. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, effective as of the Effective Date, Seller does hereby grant, bargain, transfer, sell, assign, convey and deliver to Buyer, free and clear of all Liens, all of its right, title and interest in and to the Purchased Assets, as more particularly described in the Purchase Agreement.
2. This Bill of Sale is subject to all of the terms, conditions and limitations set forth in the Purchase Agreement (including, without limitation, the covenants and indemnities set forth therein), all of which are incorporated herein by reference. In the event of any conflict or inconsistency between the terms of this Bill of Sale and the terms of the Purchase Agreement, the terms of the Purchase Agreement will prevail. Nothing contained herein will be deemed to alter, modify, expand or diminish the terms of the Purchase Agreement.
3. Seller for itself and its successors and permitted assigns, hereby covenants and agrees that, at any time and from time to time upon the written request of ▇▇▇▇▇, Seller will use commercially reasonable efforts to do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, all such further acts, deeds, assignments, transfers, conveyances, powers of attorney and assurances as may be reasonably required by ▇▇▇▇▇ in order to assign, transfer, set over, convey, assure and confirm unto and vest in Buyer, and its successors and assigns, title to the Purchased Assets.
4. This Bill of Sale shall bind Seller and inure to the benefit of ▇▇▇▇▇ and its successors and assigns.
5. This Bill of Sale shall be governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Delaware.
6. This Bill of Sale may be executed in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same agreement. Counterparts may be delivered via electronic mail (including PDF or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., ▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇) or other transmission method, and any counterparts so delivered will be deemed to be duly and validly delivered and valid and effective for all purposes, and shall constitute legally enforceable original documents.
* * * *
| 1 |
IN WITNESS WHEREOF, ▇▇▇▇▇▇ has caused this Bill of Sale to be executed effective as of the Effective Date.
| SELLER: | ||
| COGILITY SOFTWARE CORPORATION | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |
| Title: | CFO | |
| BUYER: | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: | President | |
| 2 |
EXHIBIT “C”
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Agreement”), dated as of June 23, 2025, is by and between Cogility Software Corporation (“Seller”), and Data443 Risk Mitigation, Inc. (“Buyer”). Seller and Buyer are referred to collectively herein as the “Parties”, and each as a “Party”. Capitalized terms used in this Agreement but not otherwise defined shall have the meanings ascribed to such terms in the Asset Purchase Agreement (as defined herein).
WHEREAS, the Parties have entered into an Asset Purchase Agreement, dated effective as of June 23, 2025 (the “Asset Purchase Agreement”);
WHEREAS, pursuant to the terms and subject to the conditions of the Asset Purchase Agreement, ▇▇▇▇▇ has agreed to assume the Assumed Liabilities; and
WHEREAS, this Agreement is being delivered pursuant to Section 6.2(b) of the Asset Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, it is hereby agreed as follows:
1. Assignment and Assumption of Liabilities. Seller hereby assigns, and ▇▇▇▇▇ hereby assumes and agrees to pay, perform and discharge, in accordance with their terms, all of the Assumed Liabilities as set forth in the Asset Purchase Agreement.
2. Asset Purchase Agreement. Nothing contained in this Agreement shall be deemed to supersede, modify, limit or expand any of the provisions of the Asset Purchase Agreement. In the event of any conflict between the terms of this Assignment and Assumption Agreement and the Asset Purchase Agreement, the terms of the Asset Purchase Agreement shall prevail.
3. Further Assurances; No Breach. At and after the Closing, the Parties shall from time to time take such actions in order to more effectively consummate the transactions contemplated in this Agreement in accordance with Article VI of the Asset Purchase Agreement. Notwithstanding anything to the contrary contained herein, to the extent that any of the Assumed Liabilities are not capable of being assigned without the consent, approval or waiver of a third person (including, without limitation, a governmental entity), or if such assignment or attempted assignment would constitute a breach thereof or a violation of any law or regulation, nothing in this Agreement will constitute an assignment or require the assignment thereof.
5. Successors and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither of the Parties may assign its rights or delegate its obligations under this Agreement except with the prior written consent of the other Party, which may be withheld in such Party’s sole discretion.
6. Governing Law. This Agreement and each other document delivered pursuant to this Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware.
7. Counterparts. This Agreement may be signed in any number of counterparts (including by facsimile or email transmission of pdf, TIFF or similar format), with the same effect as if the signature on each such counterpart were upon the same instrument.
[Remainder of page intentionally blank; signature page follows]
| 1 |
IN WITNESS WHEREOF, ▇▇▇▇▇ and Seller have caused this Agreement to be duly executed as of the day and year first above written.
| SELLER: | ||
| COGILITY SOFTWARE CORPORATION | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇ | |
| Title: | CFO | |
| BUYER: | ||
| DATA443 RISK MITIGATION, INC. | ||
| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |
| Title: | President | |
| 2 |
EXHIBIT “D”
Purchased Assets
The following Intellectual Property Rights, to the extent such rights and interests are assignable by Seller to Buyer under applicable law and the terms and provisions of any agreements governing the Intellectual Property Rights:
| ● | Patents |
| ○ | Application No. 18/430,490 “SYSTEMS AND METHODS FOR ANALYZING CYBER RISK OF CONNECTED ENTITIES” | |
| ○ | Application No. 18/781,708 co-patent of high-speed filtering (royalty-free, perpetual rights) |
| ● | TacitRed Trademark (#97893852) |
The following Books and Records whether written, electronically stored or otherwise recorded:
| ● | All business, employee and financial records, books, ledgers, files, correspondence, documents, lists, studies and reports, including supplier lists and service, personnel, payroll, employee benefit, relating solely to the Business during the two (2) year period immediately preceding the Closing Date |
| ● | Seller’s rights and interests under all non-solicitation agreements and non-competition agreements executed by persons employed by Seller solely in connection with the operation of the Business, to the extent such rights and interests are assignable by Seller to Buyer under applicable law and the terms and provisions of such agreements |
| ● | TacitRed website, datasheets, diagrams, infographics and other collateral |
| ● | Awards: 2024 Cybersecurity Excellence Awards – Winner in Two Product Categories: Attack Surface Management & Threat Intelligence |
| ● | Leader Position in QKS-Group analyst comparative 2025 & 2024 Threat Intelligence Management Market report (2024 Report, 2025 Publication Date TBD) |
| ● | Named a Challenger and Fast mover within the 2025 Gigaom ASM Radar report |
| ● | (New) Gigaom Solution Profile - Cogility TacitRed |
| ● | 2024 State of Attack Surface Intelligence Survey Report |
| ○ | Executive Deep Dive: Advancing Attack Surface Intelligence (survey report) |
| ● | CRM Database Export (from HubSpot) 5,200 opt-in marketing-accepted contacts and nurtured marketing qualified leads. |
Product:
| ● | Database of attack surface intelligence, including compromised credentials, sessions, systems, and threat actor activity on 13M + US companies for the past ~24 months |
| ● | All other system and customer data necessary for development and production environments |
Hardware
| ● | MacBook Laptops (Serial numbers P592W7N5YQ, LQ362RYXY6) |
| 1 |
Exhibit E – Post Closing Operating Costs
EXHIBIT “F”
