Exhibit 6.2
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.
MISO ROBOTICS, INC.
Senior
Secured Promissory Note
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Pasadena, California |
$1,062,500 |
September 30, 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 $1,062,500, 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 30,
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:
1. Certain Definitions.
(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.
2. Prepayment.
The Company may not prepay this Note in whole or in part, without the written 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; provided, however,
that such prepayment must be made as first as an initial minimum prepayment of $500,000 (“Initial Minimum Prepayment”), which
shall be applied first to the accrued Interest on the Notes as of the date of prepayment, and if any amount of the Initial Minimum Prepayment
remains, to the Principal Amount of the Notes, all on a pro-rata basis. Thereafter, any additional prepayments shall be made in increments
of $100,000, which shall be applied first to the payment of accrued Interest on the Notes and if any amount of subsequent prepayments
exceeds the amount of all such expenses and accrued interest, to the payment of Principal Amount of the Notes, all on a pro-rata basis.
3. Events of
Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note:
(a) Failure to
Pay. The Company shall fail to pay: (i) when due any Principal Amount payment on the due date hereunder; or (ii) any Interest
or other payment required under the terms of this Note on the date due and such payment shall not have been made within five (5) days
of the Company’s receipt of the Holder’s written notice to the Company of such failure to pay;
(b) Voluntary
Bankruptcy or Insolvency Proceedings. The Company shall: (i) apply for or consent to the appointment of a receiver, trustee,
liquidator or custodian of itself or of all or a substantial part of its property; (ii) commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official
in an involuntary case or other proceeding commenced against it; (iii) make an assignment for the benefit of creditors; or (iv) take
any action for the purpose of effecting any of the foregoing;
(c) Involuntary
Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company
or of all or a substantial part of the Company’s property, or an involuntary case or other proceedings seeking liquidation, reorganization
or other relief with respect to the Company or the Company’s debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within
thirty (30) days of commencement;
(d) Breach of
Representations and Warranties. Any material breach by the Company of any of the representations or warranties contained in Section 3
of the Purchase Agreement;
(e) Default under
Material Agreements. Any material breach or default under any of the agreements set forth in Section 3.9 of the Disclosure Schedule
to the Purchase Agreement; or
(f) Failure to
Pay Obligations. The Company generally fails to pay its obligations as and when due or if any judgment is secured against the Company,
which judgment is not satisfied within ten (10) days.
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.
(a) Loss, Theft,
Destruction or Mutilation of Note. Upon receipt of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note and, in the case of loss, theft or destruction, delivery of an indemnity agreement reasonably satisfactory
in form and substance to the Company or, in the case of mutilation, on surrender and cancellation of this Note, the Company shall execute
and deliver, in lieu of this Note, a new Note executed in the same manner as this Note, in the same principal amount as the unpaid principal
amount of this Note and dated the date to which interest shall have been paid on this Note or, if no interest shall have yet been so paid,
dated the date of this Note.
(b) Payment.
All payments under this Note shall be made in lawful tender of the United States.
(c) Waivers.
The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other
notices or demands relative to this instrument.
(d) Usury.
In the event any Interest is paid on this Note which is deemed to be in excess of the then legal maximum rate, then that portion of the
Interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied against
the Principal Amount of this Note.
(e) Waiver and
Amendment. Any provision of this Note may be amended, waived or modified upon the written consent of the Company and the Holders of
at least two-thirds (2/3) of the Principal Amount of all then outstanding Notes issued pursuant to the Purchase Agreement.
(f) Notices. Any
notice, request or other communication required or permitted hereunder shall be given in accordance with the Purchase Agreement.
(g) Expenses;
Attorneys’ Fees. If action is instituted to collect this Note, the Company promises to pay all reasonable costs and expenses,
including, without limitation, reasonable attorneys’ fees and costs, incurred in connection with such action.
(h) Successors
and Assigns. This Note may be assigned or transferred by the Company only with the prior written approval of the Holder. Subject to
the preceding sentence, the rights and obligations of the Company and the Holder of this Note shall be binding upon and benefit the successors,
assigns, heirs, administrators and transferees of the parties.
(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.
(j) Pari Passu
Notes. The Holder acknowledges and agrees that the payment of all or any portion of the outstanding Principal Amount of this Note,
and all accrued and unpaid Interest, shall be pari passu in right of payment and in all other respects (other than with
respect to the priority of any security interest in the assets of the Company) to the other Notes. In the event that the Holder receives
payments in excess of such Xxxxxx’s pro rata share of the Company’s payments to the holders of all the Notes, then the Holder
shall hold in trust all such excess payments for the benefit of the holders of all the other Notes, and shall pay such amounts held in
trust to such other holders upon demand by such holders.
(Signature Page Follows)
IN WITNESS WHEREOF, the
Company has caused this Note to be executed by its duly authorized officer as of the date and year first indicated above.
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COMPANY: |
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MISO ROBOTICS, INC. |
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By: |
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Name: |
Xxxxx Xxxxxx Xxxxxx |
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Title: |
Interim Chief Executive Officer |
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Address: |
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000 Xxxx Xxxxx Xxxxxx |
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Pasadena, CA 91101 |
Signature Page to
Promissory Note