Contract
Exhibit 3.1
THIS NOTE AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS IN ACCORDANCE WITH APPLICABLE REGISTRATION REQUIREMENTS OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
Senior Secured Promissory Note
Pasadena, California | |
$2,000,000 | September 30th, 2019 |
FOR VALUE RECEIVED MISO ROBOTICS, INC., a Delaware corporation (the “Company”), promises to pay to Rise of Miso, LLC (the “Holder”), or its registered assigns, the principal amount of $2,000,000, or such lesser amount as shall equal the outstanding principal amount hereof (the “Principal Amount”), together with simple interest from the date of this Note on the unpaid balance of the Principal Amount at a rate equal to ten percent (10%) per annum, in each case computed on the basis of the actual number of days elapsed and a year of 360 days (the “Interest”). Unless prepaid in accordance with Section 2 below on or prior to the Maturity Date, the unpaid Principal Amount, together with any then accrued but unpaid Interest and any other amounts payable hereunder, shall be due and payable upon the earlier to occur of: (i) September 30, 2021 (the “Maturity Date”) or (ii) when, upon or after the occurrence of an Event of Default (as defined below), such amounts are declared due and payable by the Holder or made automatically due and payable in accordance with the terms of this Note. This Note is one of the “Notes” issued pursuant to the Note and Warrant Purchase Agreement, dated as of September 30th, 2019, by and among the Company and the Investors described therein (as the same may from time to time be amended, modified or supplemented, the “Purchase Agreement”). Capitalized terms not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.
The following is a statement of the rights of the Holder of this Note and the conditions to which this Note is subject, and to which the Holder, by the acceptance of this Note, agrees:
(a) “Deemed Liquidation Event” has the meaning given to it in the Third Amended and Restated Certificate of Incorporation of the Company, dated February 6, 2018, as may be amended from time to time.
(d) “Event of Default” has the meaning given in Section 3 of this Note.
(e) “Interest” “has the meaning given in the preamble to this Note.
(j) “Principal Amount” has the meaning given in the preamble to this Note.
(k) “Purchase Agreement” has the meaning given in the preamble to this Note.
Upon the occurrence or existence of any Event of Default described in Sections 3(a), (d), (e) and (f) and at any time thereafter during the continuance of such Event of Default, the Holder may, with the consent of the Holders of at least two-thirds (2/3) of the principal amount of all then outstanding Notes issued pursuant to the Purchase Agreement, by written notice to Company, declare this Note immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained in this Note to the contrary notwithstanding. Upon the occurrence or existence of any Event of Default described in Sections 3(b)and (c), immediately and without notice, this Note shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained in this Note to the contrary notwithstanding. For purposes of this Section 3, upon the occurrence of an Event of Default, “Interest” shall mean thirteen percent (13%), per annum, computed on the basis of the actual number of days elapsed and a year of 360 days. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, the Holder may exercise any other right, power or remedy permitted to it by law.
4. Conversion of the Note. The Note shall be convertible according to the following terms:
(a) The following terms shall have the meanings assigned below:
(i) “Future Equity Financing” means any sale (or series of related sales) by the Company of its Equity Securities for cash following the date of this Note from which the Company raises gross proceeds of Two Million Dollars ($2,000,000) or more.
(ii) “Equity Securities” means the Company’s Common Stock or Preferred Stock or any securities conferring the right to purchase the Company’s Common Stock or Preferred Stock or securities convertible into, or exchangeable for (with or without additional consideration), the Company’s Common Stock or Preferred Stock, except any security granted, issued and/or sold by the Company to any director, officer, employee or consultant of the Company in such capacity for the primary purpose of soliciting or retaining their services.
(b) Mandatory Conversion. Upon the affirmative vote of a majority in principal amount of the Notes, the principal and unpaid accrued interest of this Note will be automatically converted into the type of Equity Securities issued in the Future Equity Financing upon the closing of the Future Equity Financing. The number of shares of such Equity Securities to be issued upon such conversion shall be equal to the quotient obtained by dividing the outstanding principal and unpaid accrued interest due on this Note on the date of conversion, by Eighty Percent (80%) of the lowest price per share of the Equity Securities sold to the investors in the Future Equity Financing. At least five (5) business days prior to the closing of the Future Equity Financing, the Company shall notify the Holder and all other holders of the Founder Notes in writing of the terms under which the Equity Securities of the Company will be sold in such financing. The conversion of this Note into Equity Securities, if so elected by a majority in principal amount of the Founder Notes, shall be on such terms and shall occur on the closing date of such Future Equity Financing.
(c) Voluntary Conversion. Upon written notice to the Company, the Holder may at any time elect to convert the principal and unpaid accrued interest of this Note into the type of Equity Securities issued in the Company’s most recently completed equity financing from which the Company raised gross proceeds of Two Million Dollars ($2,000,000) or more. The number of shares of such Equity Securities to be issued upon such conversion shall be equal to the quotient obtained by dividing the outstanding principal and unpaid accrued interest due on this Note on the date of conversion, by Eighty Percent (80%) of the lowest price per share of the Equity Securities sold to the investors in such equity financing.
(d) Upon the conversion of this Note into Equity Securities, in lieu of any fractional shares to which the Holder of the Note would otherwise be entitled, the Company shall pay the holder cash equal to such fraction multiplied by the issue price of such Equity Securities.
(e) As promptly as practicable after the conversion of this Note, the Company at its expense will issue and deliver to the Holder, upon surrender of the Note, a certificate or certificates for the number of full shares of Equity Securities issuable upon such conversion.
5. Miscellaneous.
(b) Payment. All payments under this Note shall be made in lawful tender of the United States.
(I) Governing Law. THIS NOTE SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW YORK AS SUCH LAWS ARE APPLIED TO AGREEMENTS BETWEEN NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK, BUT WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF NEW YORK, OR OF ANY OTHER STATE.
(Signature Page Follows)
COMPANY: | ||
MISO ROBOTICS, INC. | ||
By: | ||
Name: | Xxxxx Xxxxxx Xxxxxx | |
Title: | Interim Chief Executive Officer | |
Address: | ||
000 Xxxx Xxxxx Xxxxxx | ||
Pasadena, CA 91101 |
Signature Page to Promissory Note