AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT October 20, 2022
Exhibit 10.1
AMENDMENT NO. 1
TO
October 20, 2022
Reference is made to the Securities Purchase Agreement (the “Agreement”), dated as of August 31, 2022, by and between Arcimoto, Inc., an Oregon corporation with offices located at 0000 Xxxx 0xx Xxxxxx, Xxxxxx, XX 00000 (the “Company”), and 3i, LP, as a Buyer (“3i LP”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Agreement.
RECITALS
A. Pursuant to Section 9(e) of the Agreement, the Agreement may be amended by an instrument in writing signed by the Company and the Required Holders.
B. As of the date of this Amendment Xx. 0 (xxxx “Xxxxxxxxx”), 0x XX constitutes the Required Holders.
B. The Company and the Required Holders desire to amend the Agreement through this Amendment with effect on and after the date hereof (the “Effective Date”).
AGREEMENT
SECTION 1. Amendment to the Agreement. The parties agree, from and after the Effective Date, that Section 4(y) of the Agreement shall be amended and restated in its entirety as follows:
(y) Stockholder Approval. The Company shall either (x) if the Company shall have obtained the prior written consent of the requisite stockholders (the “Stockholder Consent”) to obtain the Stockholder Approval (as defined below), inform the stockholders of the Company of the receipt of the Stockholder Consent by preparing and filing with the SEC, as promptly as practicable after the date hereof, but prior to the forty-fifth (45th) calendar day after the Initial Closing Date (or, if such filing is delayed by a court or regulatory agency, in no event later than ninety (90) calendar days after the Initial Closing Date), an information statement with respect thereto or (y) provide each stockholder entitled to vote at a special meeting of stockholders of the Company (the “Stockholder Meeting”), which shall be promptly called and held not later than the one hundred and twentieth (120th) calendar day after the Initial Closing Date (the “Stockholder Meeting Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Buyers and Xxxxxx Xxxx & Xxxxxx LLP, at the expense of the Company, with the Company obligated to reimburse the expenses of Xxxxxx Xxxx & Xxxxxx LLP incurred in connection therewith in an amount not exceed $5,000.00. The proxy statement, if any, shall, among other things, solicit each of the Company’s stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the approval of the issuance of all of the Securities in compliance with the rules and regulations of the Principal Market (without regard to any limitations on conversion or exercise set forth in the Notes or Warrants, respectively) (such affirmative approval being referred to herein as the “Stockholder Approval”, and the date such Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company shall use its reasonable best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to be held on or prior to the one hundred and eightieth (180th) calendar day after the Initial Closing Date. If, despite the Company’s reasonable best efforts, the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held semi-annually thereafter until such Stockholder Approval is obtained, provided, that, if applicable, the Company’s obligation to hold additional Stockholder Meetings to obtain the Stockholder Approval shall terminate on the later of (x) Additional Closing Expiration Date, and (y) the date no Notes or Warrants remain outstanding.
SECTION 2. Miscellaneous.
(a) Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Amendment shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or under any of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under the Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to such Buyer or to enforce a judgment or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
(b) Counterparts. This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
(c) Effect of Amendment. Except as and to the extent expressly set forth in this Amendment, the Agreement shall remain in full force and effect in accordance with its terms.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officer as of the date first above written.
| COMPANY: | ||
| ARCIMOTO, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | Chief Financial Officer | |
| REQUIRED HOLDERS: | ||
| 3I, LP | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Manager on Behalf of the GP | |
Signature Page – Amendment No. 1 to Securities Purchase Agreement
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