FIRST AMENDMENT TO RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

Exhibit 10.8

FIRST AMENDMENT TO

RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

This FIRST AMENDMENT TO AMENDED AND RESTATED RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT (the “Amendment”) is dated and effective as of February 28, 2020 (the “Amendment Date”), by and among NOCIMED, INC., a Delaware corporation (the “Company”), and the parties set forth on the signature pages hereto. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Co-Sale Agreement (as defined below).

WHEREAS, the parties previously entered into that certain Amended and Restated Right of First Refusal and Co-Sale Agreement dated as of July 27, 2017 (the “Co-Sale Agreement”); and

WHEREAS, the parties now desire to amend the Co-Sale Agreement in certain respects on the terms and conditions set forth herein.

NOW, THEREFORE, the parties hereby agree as follows:

1.       AMENDMENT AND RESTATEMENT OF SECTION 6.3. Section 6.3 of the Co-Sale Agreement be and hereby is amended and restated in its entirety to read as follows:

“6.3 Amendment. Any provision of this Agreement may be amended or modified and/or the observance thereof may be waived or this Agreement terminated, only with the written consent of (a) the Company, (b) as to the Investors, persons holding at least a majority of the Common Stock then issued or issuable upon the conversion of the Series B Preferred Stock and Series B-1 Preferred Stock held by the Investors and their assignees, pursuant to Section 6.4 hereof, and (c) as to the Key Holders, only by the holders of a majority of the Key Holder Stock held by Key Holders then providing services to the Company as officers, employees or consultants; provided, however, that no consent of any Key Holder shall be necessary for any amendment and/or restatement which merely includes additional holders of Series B-1 Preferred Stock or other preferred stock of the Company as “Investors” as parties hereto or other employees of the Company as “Key Holders” and parties hereto and does not otherwise materially increase such Key Holders’ obligations hereunder other than the change in the number of shares determined by Section 2.3 and/or 2.4 hereof as a result of the addition of such additional holder. Any amendment or waiver effected in accordance with clauses (a), (b), and (c) of this Section 6.3 shall be binding upon each Investor, its successors and assigns, the Company and each of the Key Holders. No consent of any party hereto shall be necessary to include as a party to this Agreement any transferee required to become a party hereto pursuant to Section 3.1 hereof.”

2.       GENERAL.

(a) This Amendment shall be effective for all purposes as of the Amendment Date. Except as expressly modified herein, the Co-Sale Agreement shall continue in full force and effect in accordance with its original terms.

(b) The Co-Sale Agreement, including as herein amended by and integrated with this Amendment, comprises the sole and exclusive agreement and consent of the parties, and the terms of which shall prevail over and amend or modify any otherwise conflicting term of any other prior or contemporaneous agreement or rights of the parties.

(c) This Amendment may be executed in counterparts, each of which shall be deemed to be an original and together shall be deemed to be one and the same document. Electronic signatures shall be effective as original signatures.

[Signature Page Follows]

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date.

COMPANY:			INVESTORS:
NOCIMED, INC.			NUVASIVE, INC.
By:	/s/ L. Xxxxx Xxxxxx		By:	/s/ Xxxx Xxxxxxx
	L. Xxxxx Xxxxxx			Xxxx Xxxxxxx
	Chief Executive Officer			SVP Strategy & Corp Dev.

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date.

KEY HOLDERS:
XXXXX X. XXXXXXXX REVOCABLE TRUST			EMERGE
By:	/s/ Xxxxx X. Xxxxxxxx, M.D.		By:	/s/ Xxxxx X. Xxxxxxx III
Name: Xxxxx X. Xxxxxxxx, M.D.			Name: Xxxxx X. Xxxxxxx III
Title: Trustee			Title: n/a

XXXXX X. XXXXXXXX, M.D.		XXXXX X. XXXXXXX III
/s/ Xxxxx X. Xxxxxxxx		/s/ Xxxxx X. Xxxxxxx III

XXXX XXXXXXX XXXXXX		XXXXXXX XXXX, PH.D.
/s/ Xxxx Xxxxxxx Xxxxxx		/s/ Xxxxxxx Xxxx, Ph.D.

XXXXX XXXXXXX

/s/ Xxxxx Xxxxxxx

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXXX XXXXXX

/s/ Xxxxx Xxxxxx

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

			INVESTOR:
			SC CAPITAL 1 LLC
			By:	/s/ Xxxxx X. Xxxx
			Name:	Xxxxx X. Xxxx
			Title:	Member

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXXX XXXXX

/s/ Xxxxx Xxxxx

(Signature)

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXXX X. XXXX

/s/ Xxxxx Xxxx

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXXX XXXX

/s/ Xxxxx Xxxx

(Signature)

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXXXXXX FAMILY LIVING TRUST, DATED FEBRUARY 27, 2007

/s/ Xxxxxx Xxxxxxxx

Signature

Xxxxxx Xxxxxxxx

Signatory Name

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXX XXXXXXX

/s/ Xxxx Xxxxxxx

(Signature)

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXXXXX X. XXXXXXX AND XXXXXX XXXXXX XXXXXXX FAMILY TRUST

/s/ Xxxxxxx X. Xxxxxxx

Signature

Xxxxxxx X. Xxxxxxx

Signatory Name

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

BEE BROTHERS INVESTMENTS LLC

/s/ Xxxxx X. Bee

Signature

Xxxxx X. Bee

Signatory Name

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

BEE FAMILY ENTERPRISES

/s/ Xxxxx X. Bee

Signature

Xxxxx X. Bee

Signatory Name

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

STONE CAPITAL LLC

/s/ Xxxxx X. Bee

Signature

Xxxxx X. Bee

Signatory Name

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

XXXXXX X. XXXXX XX.

/s/ Xxxxxx X. Xxxxx Xx.

(Signature)

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Amended and Restated Right of First Refusal and Co-Sale Agreement as of the Amendment Date

INVESTOR:

Xxxxxxx Family Trust Dated May 30, 1986

/s/ Xxxxxxx X. Xxxxxxx

(Signature)

SIGNATURE PAGE TO FIRST AMENDMENT TO AMENDED AND RESTATED
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT

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