FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibt 10.1
FIRST AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This First Amendment to that certain Securities Purchase Agreement (this “Agreement”) is dated as of March 1, 2023, between Healthier Choices Management Corp., a Delaware corporation (the “Company”), and
each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”). Capitalized terms not otherwise defined in this Agreement shall have the respective meanings ascribed to them in the SPA (as defined below).
WHEREAS, the parties entered into a
Securities Purchase Agreement, dated as of August 18, 2022 (“SPA”), the Purchasers and the Seller; and
WHEREAS, the parties have decided
to amend the SPA as set forth below to add certain provision.
NOW, THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
AMENDMENTS
AMENDMENTS
1.1 Conversion Payment. Upon conversion of the Preferred Stock pursuant to Section 6(a) of the Series E Certificate of Designation prior to the record date for the Spin Off, the Company will pay the Purchaser ten percent (10%) of the Stated Value of the
Preferred Stock then converted.
1.2 No Amendment. Nothing contained herein in any manner modifies or amends any other terms
or provisions of the SPA all of which remain in full force and effect unmodified.
ARTICLE II
MISCELLANEOUS
MISCELLANEOUS
2.1 Entire Agreement. This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and supersede all prior agreements and understandings, either oral or written.
2.2 Amendment and Waiver. This Agreement may be amended only by an instrument in writing
signed by all of the signatories hereto.
2.3 Assignment. This Agreement and the rights and obligations set forth herein shall inure
to the benefit of, and be binding upon the parties hereto, and each of their respective successors, heirs and permitted assigns.
2.4 Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be governed by the
laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule that would cause application of the laws of any jurisdiction other than the State of New York. Each of the parties to this Agreement
irrevocably submits to the exclusive jurisdiction of the courts of the State of New York for the purpose of any dispute arising out of or relating to this Agreement. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
ACTION RELATED TO OR ARISING OUT OF THIS AGREEMENT.
2.5 Construction. Each party hereto acknowledges that it has been advised by legal and any
other counsel retained by such party in its sole discretion. Each party acknowledges that such party has had a full opportunity to review this Agreement and all related exhibits, schedules and ancillary agreements and to negotiate any and all such
documents in its sole discretion, without any undue influence by any other party hereto or any third party. The parties have participated jointly in the negotiations and drafting of this Agreement and both shall be deemed drafters. In the event of
any ambiguity or question of intent or interpretation, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
2.6 Counterparts. This Agreement may be executed in two or more counterparts, any one of
which need not contain the signatures of all parties, but all of which counterparts when taken together will constitute one and the same agreement. Facsimile signatures (including in .pdf format) shall constitute original signatures for all purposes
of this Agreement.
[Remainder of Page Intentionally Left Blank]
1
NOW, THEREFORE, the parties hereto have executed this First Amendment to Securities Purchase Agreement by their duly authorized
representatives as an instrument under seal as of the date first written above.
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PURCHASER:
Sabby Volatility Warrant Master Fund, Ltd.
By: /s/ Xxxxxx Xxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxx
Title: COO of Investment Manager
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By: : /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer
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