SECOND AMENDMENT TO SECURED CONVERTIBLE PROMISSORY NOTE
SECOND AMENDMENT TO SECURED CONVERTIBLE PROMISSORY NOTE
This Second Amendment to Secured Convertible Promissory Note is made and entered into effective as of March 11, 2022, by and between EVO Transportation & Energy Services, Inc. (“Borrower”) and Xxxxx X. Xxxxxx (“Noteholder”).
WHEREAS, Borrower and Noteholder are parties to a Six Million Six Hundred Fifty Thousand Dollars ($6,650,000.00) Secured Convertible Promissory Note dated February 1, 2017 (the “Note”); and
WHEREAS, Borrower and Noteholder desire to amend the Note as set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Amendment of Section 2b. Section 2b of the Note is hereby deleted in its entirety and replaced with the following:
b. Optional Conversion of Note by Holder. At any time and from time to time after the Anniversary Date, including at any time within 90 days after the Holder’s receipt of notice of the consummation of the Triggering Event, the Holder may, at the Holder’s option, convert (i) all or part of the Balance (such amount to be converted, the “Converted Principal Amount”) into a warrant to purchase a number of shares of Common Stock equal to the quotient of the Converted Principal Amount (which shall not be less than Thirty-Five Thousand Dollars ($35,000)) divided by the Exchange Ratio; and (ii) all or part of the then Accrued Interest (“PIK”) (such PIK amount to be converted, the “Converted PIK Amount”) into a warrant to purchase a number of shares of Common Stock equal to the quotient of the Converted PIK Amount (which shall not be less than Thirty-Five Thousand Dollars ($35,000)) divided by the greater of (A) The Exchange Ratio or (B) the closing price of a share of Common Stock as reported on the Listing Date on the Stock Exchange. Any Warrant issued pursuant to this Section 2b will be issued on terms and documentation acceptable to Holder and Borrower at the price of $0.01 (one xxxxx) per share with a five (5) year expiration.
2. Amendment of Section 2d. Section 2d of the Note is hereby deleted in its entirety and replaced with the following:
d. Procedure for Conversion.
[Signature Page to Second Amendment to Promissory Note]
3. Amendment of Section 2g. Section 2g of the Note is hereby deleted in its entirety and replaced with the following:
g. Termination of Rights. All rights with respect to this Note shall terminate upon the effective conversion of the entire Balance, all of the Accrued Interest, and all other amounts due hereunder, whether or not this Note has been surrendered to Borrower for cancellation.
4. Amendment of Section 2h. Section 2h of the Note is hereby deleted in its entirety and replaced with the following:
h. Issuance of Shares or Warrant. As promptly as practicable after any conversion of this Note into a warrant to purchase shares of Common Stock or shares of Common Stock, as applicable, as provided herein, Borrower, at its cost and expense, shall issue to Holder such warrant or such shares of Common Stock in book-entry form that are issuable to the Holder or the Holder’s nominees in connection with a conversion under this Section 2.
2. All other terms and conditions of the Note shall remain as stated in the Note.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Promissory Note be executed effective as of the date first above written.
BORROWER:
EVO TRANSPORTATION & ENERGY SERVICES, INC.
/s/ Xxxxxx X. Xxxxx
By: Xxxxxx X. Xxxxx
Its: Chief Executive Officer
NOTEHOLDER:
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
[Signature Page to Second Amendment to Promissory Note]
