SECOND AMENDMENT TO FORBEARANCE AND SETTLEMENT AGREEMENT
This Second Amendment to Forbearance and Settlement Agreement (this “Amendment”) dated effective as of November 6, 2024 (this “Effective Date”), is entered into by and between Cyber App Solutions, Corp., a Nevada corporation (the “Company”), Kips Bay Select LP, a Delaware limited partnership (“Kips Bay” and a “Holder”), and Cyber One, Ltd, a Cayman Islands limited company (“Cyber One”, a “Holder”, and together with Kips Bay, the “Holders”). The Company and the Holders are together referred to herein as the “Parties,” or each of them individually as a “Party”. Capitalized terms in this Agreement shall have the meanings given to them in the Forbearance Agreement (as defined below), unless otherwise defined herein.
RECITALS
WHEREAS, the Company and the Holders are parties to that certain Forbearance and Settlement Agreement, dated as of September 16, 2024 (as amended by that certain Amendment for Forbearance Agreement and Settlement Agreement, dated as of October 15, 2025, and as amended, restated, supplemented or otherwise modified from time to time, the “Forbearance Agreement”);
WHEREAS, the Company will not be able to meet certain of the conditions to the forbearance set forth in the Forbearance Agreement; and
WHEREAS, the Company has requested that the Holders continue to forbear from exercising their rights and remedies under the Purchase Agreement and Notes and agree to certain amendments to the Forbearance Agreement in this regard in exchange for certain additional covenants of the Company as provided in this Amendment.
AGREEMENTS
NOW THEREFORE, in consideration of the foregoing and the mutual agreements and covenants contained herein,and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.Specific Amendments to Forbearance Agreement. Subject to the conditions set forth in this Agreement, the Forbearance Agreement is hereby amended as follows:
(a)Section 1(a)(v)of the Forbearance Agreement is deleted and replaced with the word [RESERVED];
(b)Section 1(a)(vi)of the Forbearance Agreement is deleted and replaced with the word [RESERVED];
(c)Section 1(a)(vii) of the Forbearance Agreement is deleted and replaced with the word [RESERVED].
(a)No later than 5:00 p.m. (New York City) on November 6, 2024, the Company will issue to Kips Bay 5,000,000 shares of Common Stock, and the Company will issue to Cyber One 5,000,000 shares of Common Stock; and
(b)No later than 6:00 p.m. (New York City) on November21, 2024, the Company will pay to each of Kips Bay and Cyber One the separate amount of $1,300,000, in cash in immediately available funds; and
(c)Provided, the Company fully satisfies its obligation in Section 2(b) above, each Holder will return 1,000,000 shares of the 5,000,000 shares received under Section2(a) above to the Company; and
(d)No later than 6:00 p.m. (New York City) on January 31, 2025, the Company will pay to each of Kips Bay and Cyber One the separate amount of $6,000,000, in cash in immediately available funds; and
(e)Provided, the Company fully satisfies its obligation in Section 2(d) above, each Holder will return 1,000,000 shares of the 5,000,000 shares received under Section 2(a) above to the Company; and
(f)Parties agree that Section 3.3 of the Note is deletedin its entirety; and
(g)The Company shall not incur any additional debt, whether secured or unsecured, until the completion of the up-listing process or the full settlement of all outstanding obligations to the Holders; and
(h)The Parties acknowledge that the aggregate amount owing in respect of the Notes as of the date hereof is approximately $21,000,000; and
(i)Holders shall have the right to appoint a representative who will have full access to the Chief Executive Officer, Chief Financial Officer and the Board of Directors of the Company and shall be entitled to attend each meeting of the Board of Directors until the full and timely performance of the Company’s covenants and conditions set forth in this Section 2 and Section 3. This representative will also have view access rights to all bank accounts of the Company and its subsidiaries and be entitled to request an accounting of all expenditures of the Company and its subsidiaries, to ensure transparency and accountability in financial matters.His or her role will facilitate communication and enhance collaboration between the Company and the Holders,and allow for informed input on strategic decisions by the Holders; and
(j)The Company shall provide a copy of the Engagement Agreement with Xxxx Capital,including any amendments, to the Holders.Additionally, the Company shall ensure that any changes to this engagement are promptly communicated to the Holders, maintaining transparency and collaboration throughout the engagement process.
3.Board Consent. On the date hereof, the Company shall deliver to each Holder, a unanimous consent of the board of directors of the Company duly executed by each member thereof approving the Company's entrance into and delivery of this Amendment and the performance of the transactions contemplated hereby in a form acceptable to the Holders.
4.Binding Agreement. This Agreement shall bind and inure to the benefit of the respective successors and assigns of each of the parties hereto.
5.Severability. The invalidity, illegality or unenforceability of any provision in or obligation under this Agreement shall not affect or impair the validity, legality or enforceability of the remaining provisions or obligations hereunder.
6.Effect of this Amendment. Except as expressly set forth herein, no other changes or modifications to the Purchase Agreement, the Notes or Forbearance Agreement are intended or implied, and in all other respects the Purchase Agreement, the Notes or Forbearance Agreement are hereby specifically ratified and confirmed by all parties hereto as of the date hereof. This Amendment and any instruments or documents delivered or to be delivered in connection herewith, represent the entire agreement and understanding concerning the subject matter hereof and thereof between the parties hereto, and supersede all other prior agreements, understandings, negotiations and discussions, representations, warranties, commitments, proposals, offers and contracts concerning the subject matter hereof, whether oral or written. Notwithstanding any breach of the Forbearance Agreement or this Amendment, following any such breach (a) the Holders entitled to receive and retain the shares of Common Stock issuable under Section 2(a) hereof, (b) the amounts owning under the Notes shall be no less than the amounts acknowledged under Section 2(h) hereof plus any accrued interest and other amounts owing under the Transaction Documents, minus any payments made after the date hereof towards such amounts, and (c) Section 2(f), Section 2(g), and Section 2(i) shall survive any such breach.
7.References. All references in the Forbearance Agreement to “this Forbearance Agreement” or “the Forbearance Agreement” shall be deemed to refer to the Forbearance Agreement as amended by this Amendment.
8.Counterparts; Headings; Recitals. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original but all of which when taken together shall together constitute one and the same instrument. A signature hereto sent or delivered by PDF, facsimile or other electronic transmission shall be as legally effective and binding as a signed original for all purposes. The titles and headings in this Amendment have no substantive meaning and are solely for the convenience of the parties. The Recitals hereto are hereby incorporated into this Amendment by this reference thereto.
9.Further Assurances. The parties hereto shall execute and deliver such additional documents and take such additional action as may be reasonably necessary or desirable to effectuate the provisions and purposes of this Amendment.
10.Governing Law; Forum. This Amendment and all claims or causes of action arising hereunder shall be governed by and construed in accordance with the choice of law set forth in the Forbearance Agreement, and in the event of a dispute arising under this Amendment, the Parties hereby submit to exclusive jurisdiction in the federal or state courts as provided for in the Forbearance Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, duly authorized officers of each of the undersigned have executed this Amendment to Forbearance and Settlement Agreement as of the date first written above.
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KIPS BAY SELECT LP |
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By: |
/s/ Xxxxx Xxxxx |
Name: |
Xxxxx Xxxxx |
Title: |
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CYBER ONE, LTD |
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By: |
/s/ Xxxxxx Xxxxx |
Name: |
Xxxxxx Xxxxx |
Title: |
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[Signature Page to Amendment to Forbearance and Settlement Agreement]
