FORBEARANCE AGREEMENT
Exhibit 10.2
This FORBEARANCE AGREEMENT, dated as of September 15, 2022 (this “Agreement”), is entered into by and among Evofem Biosciences, Inc., a Delaware corporation (the “Company”), the Guarantors identified on the signature pages hereto, and the Purchasers party hereto, and is made with reference to the Securities Purchase Agreement dated as of October 14, 2020, as amended from time to time (the “Securities Purchase Agreement”) by and among the Company and the purchasers from time to time party thereto (each, a “Purchaser”, and collectively, the “Purchasers”).
W I T N E S S E T H:
WHEREAS, (1) the Company has been delisted from the Nasdaq Stock Market as of August 11, 2022, which delisting constitutes an Event of Default pursuant to Section 8.1(d) of the Securities Purchase Agreement and (2) events of default have occurred pursuant to certain Other Note Agreements (as defined below) prior to the date hereof which constitute an Event of Default pursuant to Section 8.1(c) of the Securities Purchase Agreement (collectively, the “Specified Defaults”);
WHEREAS, by virtue of the Specified Defaults, the Purchasers have the right to accelerate payment of the Outstanding Balance per Section 8.2 of the Securities Purchase Agreement, absent the forbearance set forth in this Agreement;
WHEREAS, the Company has requested that the Purchasers agree to forbear during the Forbearance Period (as defined below) from exercising their rights and remedies as specified herein against the Company with respect to the Specified Defaults;
WHEREAS, the Company has requested that the Purchasers consent to the incurrence of any Indebtedness by the Company following the date hereof in an aggregate principal amount not to exceed $5,000,000 (the “Interim Financing”); and
WHEREAS, on the terms and subject to the conditions set forth herein, the undersigned Purchasers agree to provide such consent and to forbear from exercising their rights and remedies against the Company with respect to the Specified Defaults as specified herein.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:
SECTION 1.Definitions. Each capitalized term used and not otherwise defined in this Agreement shall have the meaning assigned to such term in the Securities Purchase Agreement. As used in this Agreement, the following terms shall have the following meaning:
“2022 Purchase Agreements” shall mean (a) that certain Securities Purchase Agreement, dated January 13, 2022, by and among the Company and each of the investors listed on the schedule of buyers attached thereto and (b) that certain Securities Purchase Agreement, dated March 1, 2022, by and among the Company and each of the investors listed on the schedule of buyers attached thereto, in each case, as amended by the May 2022 Exchange Agreements (as defined below).
“Xxxxx Notes” shall mean the Notes (as defined in the Xxxxx Securities Purchase Agreement).
“Xxxxx Securities Purchase Agreement” shall mean that certain Securities Purchase Agreement, dated as of April 23, 2020, by and among the Company, the guarantors thereto, the purchasers thereto (the “Xxxxx Purchasers”), and Xxxxx Bros. Advisors LP, as agent and collateral agent for the Xxxxx Purchasers (the “Designated Agent”), as amended by the First Amendment to Securities Purchase Agreement, entered into as of November 20, 2021, by and among the Company, the Xxxxx Purchasers, and the Designated Agent, and as amended by the Second Amendment to Securities Purchase Agreement, entered into as of March 21, 2022, by and among the Company, the Xxxxx Purchasers, and the Designated Agent.
“May 2022 Exchange Agreements” shall mean the collective reference to each Amendment and May 2022 Exchange Agreement, dated as of May 4, 2022, by and between the Company and the investor signatories thereto and “May 2022 Exchange Agreement” means each such Amendment and May 2022 Exchange Agreement, individually.
“Exchange Notes” shall mean the collective reference to each senior subordinated note issued by the Company pursuant to the applicable May 2022 Exchange Agreement.
“Other Note Agreements” shall mean (a) the Adjuvant Securities Purchase Agreement, (b) the Adjuvant Notes, (c) the 2022 Purchase Agreements, (d) the May 2022 Exchange Agreements and (e) the Exchange Notes.
SECTION 2.Ancillary Agreements. As of the date of this Agreement (the “Forbearance Effective Date”), the parties hereto shall execute and deliver: (i) that certain amendment to the Securities Purchase Agreement, in the form set forth on Exhibit A attached hereto (the “SPA Amendment”), (ii) those certain Exchange Agreements in substantially the form attached hereto as Exhibit B and Exhibit C (the “May 2022 Exchange Agreements”), and (iii) the ROFR Side Letter (the “ROFR Side Letter”) among the Company, the Designated Aget and the purchasers under the 2022 Purchase Agreements (together with the May 2022 Exchange Agreements SPA Amendment, and May 2022 Exchange Agreements, the “Ancillary Agreements”).
SECTION 3.Confirmation by Company of Obligations and Specified Defaults.
(a)The Company acknowledges and agrees that, as of the Forbearance Effective Date, the aggregate principal amount of the Outstanding Balance under the Securities Purchase Agreement is not less than $25,950,402.
(b) The foregoing amount does not include interest payable in cash, fees, penalties, expenses and other amounts which are chargeable or otherwise reimbursable under the Securities Purchase Agreement and the other Transaction Documents. The Company shall not have any rights of offset, defenses, claims or counterclaims with respect to any of the outstanding Obligations.
(c) The Company acknowledges and agrees that each Specified Default constitutes an Event of Default. The Company represents and warrants that, except for the Specified Defaults, no other Event of Default has occurred and is continuing as of the Forbearance Effective Date.
SECTION 4.Consent. Notwithstanding anything to the contrary set forth in the Securities Purchase Agreement or the other Transaction Documents, including, without limitation, Section 7.2(a) of the Securities Purchase Agreement, the Purchasers hereby consent to the incurrence by the Company and its subsidiaries of Interim Financing following the Forbearance Effective Date in an aggregate principal amount not to exceed $5,000,000. The Company will use reasonable best efforts to obtain Interim Financing through the offering and sale of equity securities and/or on an unsecured or junior secured basis. In the
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event Interim Financing on commercially reasonable terms is available only on a senior secured basis, the Purchasers will agree to subordinate to such Interim Financing and waive any covenants or contractual prohibitions under the Securities Purchase Agreement and Transaction Documents proscribing the incurrence of such senior Indebtedness.
SECTION 5.Agreement to Forbear.
(a)Effective as of the Forbearance Effective Date, each Purchaser agrees that until the expiration of the Forbearance Period, it will forbear from exercising its rights and remedies and from otherwise taking any enforcement action against the Company with respect to the Specified Defaults, including, but not limited to, the commencement of a lawsuit and/or enforcement proceedings or other action against the Company solely with respect to the Specified Defaults; provided, however, that (i) the Company shall comply with all limitations, restrictions or prohibitions that would otherwise be effective or applicable under the Securities Purchase Agreement or any of the other Transaction Documents upon the occurrence or during the continuance of any Event of Default, and (ii) nothing herein shall restrict, impair or otherwise affect any Purchaser’s rights and remedies (other than any such rights and remedies against the Company as and to the extent expressly set forth in this Agreement) under any agreements, including, without limitation, any agreement containing subordination provisions in favor of any or all of the Purchasers (including, without limitation, any rights or remedies available to the Purchasers as a result of the occurrence or continuation of any Specified Default) or amend or modify any provision thereof.
As used herein, the term “Forbearance Period” shall mean the period from the Forbearance Effective Date to the date on which a Forbearance Termination Event first occurs, and the term “Forbearance Termination Event” shall mean the earliest of:
(1) the first date after December 31, 2022 on which the Company’s total cash falls below $1,000,000,
(2) the occurrence of any Event of Default other than the Specified Defaults,
(3) the failure of the Company to timely comply with any term or agreement set forth in this Agreement in any material respect,
(4) an acceleration by the requisite purchasers or investors, as applicable, under and in accordance with Other Note Agreements, as applicable, or
(5) the date that the Company enters into any forbearance or similar agreement with the purchasers or investors, as applicable, under any Other Note Agreement solely to the extent such forbearance or similar agreement requires the Company to make any payment to such purchasers or investors in cash (excluding, for the avoidance of doubt, (i) permitted payment of regularly scheduled principal and interest and reimbursement of fees and expenses in the ordinary course of business, (ii) the forbearance agreement entered into with the Xxxxx Purchasers and the Designated Agent on the date hereof and the Exchange Agreements), or
(6) the date that the Company first challenges the validity or enforceability of the actions contemplated under this Agreement or the validity or enforceability of the rights of the Purchasers under the Securities Purchase Agreement (and the ancillary agreements thereunder). For the avoidance of doubt, the Obligations are not impaired, reduced or affected by this Agreement and continue in full force and effect.
(b)Upon the expiration of the Forbearance Period, the agreement of the Purchasers hereunder to forbear from exercising their respective rights and remedies in respect of the Specified Defaults shall immediately terminate without the requirement of any demand, presentment, protest, or notice of any kind, all of which the Company waives. The
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Company agrees that any or all of the Purchasers may at any time after the expiration of the Forbearance Period proceed to exercise any and all of their respective rights and remedies under any or all of the Securities Purchase Agreement, any other Transaction Document and/or applicable law, including, without limitation, their respective rights and remedies with respect to the Specified Defaults. Without limiting the generality of the foregoing, upon the expiration of the Forbearance Period, the Purchasers may, in their sole discretion and without the requirement of any demand, presentment, protest, or notice of any kind, (i) commence any legal or other action to collect any or all of the Obligations from the Company and (ii) take any other enforcement action or otherwise exercise any or all rights and remedies provided for by any or all of the Securities Purchase Agreement, any other Transaction Documents and/or applicable law, all of which rights and remedies are fully reserved by the Purchasers.
(c)Northing contained in this Agreement shall be construed to prevent the Purchasers from extending the Forbearance Period. Any agreement by the Purchasers to extend the Forbearance Period, if any, must be set forth in writing and signed by a duly authorized signatory of the Purchasers.
(d) The Company acknowledges that the Purchasers have not made any assurances concerning (i) any possibility of an extension of the Forbearance Period, (ii) the manner in which or whether the Specified Defaults may be resolved or (iii) any additional forbearance, waiver, restructuring or other accommodation.
SECTION 6.Conditions to Agreement. The agreement to forbear and the amendments set forth herein (including the effectiveness of the Ancillary Agreements) are subject to the satisfaction of each of the following conditions on or prior to the Forbearance Effective Date:
(a)The Purchasers shall have received a counterpart signature page of this Agreement and the SPA Amendment, duly executed and delivered by the Company and each Purchaser under the Securities Purchase Agreement;
(b)the Company and the requisite parties thereto shall have entered into the Exchange Agreements; and
(c)the Forbearance Agreement, dated September 15, 2022, by and between the Company, the guarantors thereto, the Xxxxx Purchasers, and the Designated Agent, shall be duly executed by all parties.
SECTION 7.General Release; Indemnity. In addition to, and not in lieu of or in any way limiting, the provisions of the Securities Purchase Agreement, in consideration of, among other things, the Purchasers’ execution and delivery of this Agreement, each of the Company, on behalf of itself and its agents, representatives, officers, directors, advisors, employees, subsidiaries, affiliates, successors and assigns (collectively, “Releasors”), hereby forever agrees and covenants not to sue or prosecute against any Releasee (as hereinafter defined) and hereby forever waives, releases and discharges, to the fullest extent permitted by law, each Releasee (as hereinafter defined) from any and all claims (including, without limitation, crossclaims, counterclaims, rights of set-off and recoupment or claims of fraudulent transfer under state or federal law), actions, causes of action, suits, debts, accounts, interests, liens, promises, warranties, damages and consequential damages, demands, agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments, executions, costs, expenses or claims whatsoever (collectively, the “Claims”), that such Releasor now has, of whatsoever nature and kind, whether known or unknown, whether arising at law or in equity, against any or all of the Purchasers (in their capacities as such) and their respective affiliates, subsidiaries, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), solely to the extent based on facts,
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whether or not now known, existing on or before the Forbearance Effective Date, that relate to, arise out of or otherwise are in connection with: (i) any or all of the Transaction Documents or transactions contemplated thereby or any actions or omissions in connection therewith or (ii) any aspect of the dealings or relationships between or among the Company, on the one hand, and any or all of the Purchasers, on the other hand, relating to any or all of the documents, transactions, actions or omissions referenced in clause (i) hereof. In entering into this Agreement, the Company consulted with, and has been represented by, legal counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity hereof. Notwithstanding the foregoing, the directors and officers of the Company do not waive and may assert any defenses they may have as of the date hereof in connection with any claims made against them related to the foregoing. The provisions of this Section 6 shall survive the termination of this Agreement, the Securities Purchase Agreement, the other Transaction Documents and payment in full of the Obligations.
(a)The Company hereby agrees that it shall be obligated to indemnify and hold the Releasees harmless with respect to any and all liabilities, obligations, losses, penalties, actions, judgments, suits, costs, expenses or disbursements which are direct, indirect or consequential in nature which are incurred by the Releasees, or any of them, as a result of or arising from or relating to any proceeding by, or on behalf of any Person, including, without limitation, the respective officers, directors, agents, trustees, creditors, partners or shareholders of the Company or any of its respective Subsidiaries, whether threatened or initiated, in respect of any claim for legal or equitable remedy under any statue, regulation or common law principle arising from or in connection with the negotiation, preparation, execution, delivery, performance, administration and enforcement of the Securities Purchase Agreement, the other Transaction Documents, this Agreement or any other document executed and/or delivered in connection herewith; provided, that the Company shall not have any obligation to indemnify or hold harmless any Releasee hereunder with respect to liabilities to the extent they result from the gross negligence or willful misconduct of that Releasee as finally determined by a court of competent jurisdiction. If and to the extent that the foregoing undertaking may be unenforceable for any reason, the Company agrees to make the maximum contribution to the payment and satisfaction thereof which is permissible under applicable law. The foregoing indemnity shall survive the termination of this Agreement, the Securities Purchase Agreement, the other Transaction Documents and the payment in full of the Obligations. Notwithstanding anything to the contrary herein, the rights of the Company’s officers and directors to receive indemnification from the Company pursuant to applicable law and agreements by and between the Company and such persons shall not be altered or otherwise affected pursuant to the terms of this Agreement.
(b)The Company, on behalf of itself and its successors and assigns, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee that it will not sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and discharged by the Company pursuant to this Section 6. If the Company or any of its successors or assigns violates the foregoing covenant, the Company, for itself and its successors and assigns, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys’ fees and costs incurred by any Releasee as a result of such violation.
SECTION 8.Representations and Warranties. The Company hereby represents and warrants to each Purchaser (in each case solely with respect to itself), in each case as of the Forbearance Effective Date, that:
(a)The Company has the requisite power and authority, and the legal right, to enter into this Agreement. The Company has taken all necessary corporate or other organizational action to authorize the execution, delivery and performance of this Agreement. This Agreement constitutes a legal, valid and binding obligation of the Company, enforceable
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against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law).
(b)The representations and warranties made by the Company pursuant to Section 5 of the Securities Purchase Agreement are true and correct in all material respects on and as of the Forbearance Effective Date, after giving effect to this Agreement and with the exception, where applicable, of the Specified Defaults, as if made on and as of such date except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date.
(c)Immediately after giving effect to this Agreement and the Ancillary Agreements, except for the Specified Defaults, no Event of Default shall be continuing on and as of the Forbearance Effective Date or will result from the consummation of the transactions contemplated by this Agreement.
SECTION 9.Entire Agreement. This Agreement (including the exhibits attached hereto), the Securities Purchase Agreement and the other Transaction Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. No amendment of any of the foregoing documents shall be valid unless memorialized in a writing by the Purchasers.
SECTION 10.GOVERNING LAW. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT, AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SECURITIES PURCHASE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 11.Consent to Jurisdiction; Waiver of Jury Trial. The jurisdiction and waiver of jury trial provisions set forth in Sections 12.3 of the Securities Purchase Agreement are hereby incorporated by reference, mutatis mutandis.
SECTION 12.Consent to Service of Process. Each party to this Agreement irrevocably consents to the service of process in the manner provided for notices in Section 12.7 of the Securities Purchase Agreement. Nothing in any Transaction Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 13.Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
SECTION 14.Transaction Document. This Agreement constitutes a “Transaction Document” for all purposes of the Securities Purchase Agreement and the other Transaction Documents.
SECTION 15.Reaffirmation. Each of the undersigned Loan Parties (a) acknowledges all of its obligations, undertakings and liabilities under the Securities Purchase Agreement
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and the other Transaction Documents to which it is a party in each case as amended in connection herewith and such obligations, undertakings and liabilities, where applicable, are hereby reaffirmed and remain in full force and effect on a continuous basis and (b) agrees that its grant of security interests pursuant to the Security Purchase Agreement is reaffirmed and remains in full force and effect after giving effect to this Agreement and secures all Secured Obligations (as in effect after giving effect hereto).
SECTION 16.Counterparts. This Agreement may be executed by the parties hereto in any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by fax, email or other electronic transmission (including in .pdf or .tif format) shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 17.Headings. The headings of this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 18.Effect of this Agreement. Except as expressly set forth herein, this Agreement (a) shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Purchasers, in each case under the Securities Purchase Agreement or any other Transaction Document, and (b) shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Securities Purchase Agreement or any other Transaction Document. Except as expressly set forth in this Agreement, each and every term, condition, obligation, covenant and agreement contained in the Transaction Documents is hereby ratified and reaffirmed in all respects and shall continue in full force and effect. The execution, delivery and effectiveness of this Agreement shall not, except as expressly provided in this Agreement, operate as a waiver of any right, power or remedy of any Purchaser under any of the Transaction Documents, or constitute a waiver of any provision of any of the Transaction Documents. This Agreement shall not extinguish the obligations for the payment of money outstanding under the Securities Purchase Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the Securities Purchase Agreement, which shall remain in full force and effect, except to any extent amended or modified by this Agreement. Nothing implied in this Agreement shall be construed as a release or other discharge any of the Loan Parties from the Transaction Documents. From and after the Forbearance Effective Date, all references to the Securities Purchase Agreement in any Transaction Document and all references in the Securities Purchase Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import referring to the Securities Purchase Agreement shall, unless expressly provided otherwise, be deemed to refer to the Securities Purchase Agreement, as modified by this Agreement. Each of the Loan Parties hereby consents to this Agreement and confirms that all obligations of such Loan Party under the Transaction Documents to which the Company is a party shall continue to apply to the Securities Purchase Agreement, as modified by this Agreement.
SECTION 19.Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon each of the parties hereto, each Purchaser and the successors and permitted assigns of each of the parties hereto and each Purchaser.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.
| COMPANY: | |||||||||||||||||
| EVOFEM BIOSCIENCES, INC. | |||||||||||||||||
| By: | /s/ Xxxxxx X. File | ||||||||||||||||
Name: Xxxxxx X. File | |||||||||||||||||
Title: Chief Financial Officer | |||||||||||||||||
| GUARANTORS: | |||||||||||||||||
EVOFEM, INC. EVOFEM BIOSCIENCES OPERATIONS, INC. EVOFEM LIMITED, LLC EVOFEM NORTH AMERICA, INC. | |||||||||||||||||
| By: | /s/ Xxxxxx X. File | ||||||||||||||||
Name: Xxxxxx X. File | |||||||||||||||||
Title: Chief Financial Officer | |||||||||||||||||
ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND, LP as a Purchaser | |||||||||||||||||
By: Adjuvant Capital GP, L.P., its General Partner | |||||||||||||||||
By: Adjuvant Capital Management, LLC, its General Partner | |||||||||||||||||
| By: | /s/ Xxxxx Xxx | ||||||||||||||||
| Xxxxx Xxx | |||||||||||||||||
| Co-President | |||||||||||||||||
ADJUVANT GLOBAL HEALTH TECHNOLOGY FUND DE, LP, as a Purchaser | |||||||||||||||||
By: Adjuvant Capital GP, L.P., its General Partner | |||||||||||||||||
By: Adjuvant Capital Management, LLC, its General Partner | |||||||||||||||||
| By: | /s/ Xxxxx Xxx | ||||||||||||||||
| Xxxxx Xxx | |||||||||||||||||
| Co-President | |||||||||||||||||
Exhibit A
SPA Amendment
Exhibit A - SPA Amendment
Exhibit B
Adjuvant Exchange Agreement
Exhibit B – Adjuvant Exchange Agreement
Exhibit C
Exchange Agreement
Exhibit C – Exchange Agreement
Schedule I
SPECIFIED DEFAULTS
Any default or Event of Default pursuant to § 8.1(c) of the Securities Purchase Agreement, including without limitation, defaults arising from the Company’s failure to make interest payments pursuant to § 9.1(c) of the Xxxxx Securities Purchase Agreement and the suspension of trading of shares of the Company’s Common Stock on the Nasdaq Capital Market and any potential delisting of the Company’s Common Stock from the Nasdaq Capital Market as of August 11, 2022, including pursuant to §§ 8.1(d), 9.1(c) and (e) of the Xxxxx Securities Purchase Agreement.
