AMENDMENT TO SECURITIES PURCHASE AGREEMENT
Exhibit 10.43
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
This AMENDMENT TO SECURITIES PURCHASE AGREEMENT, dated as of May 24, 2021 (this “Amendment”), is made and entered into by and among FreightHub, Inc., a Delaware corporation (the “Company”), and the undersigned parties (the “Holders”), in connection with that certain Securities Purchase Agreement, dated as of February 9, 2021 (the “Agreement”), by and among the Company and each purchaser identified on the signature pages thereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”). As used in this Amendment, capitalized terms which are not defined herein shall have the meanings ascribed to such terms in the Agreement.
W I T N E S S E T H
WHEREAS, pursuant to Section 5.5 of the Agreement, any amendment to the Agreement requires a written instrument signed by Purchasers which purchased at least 50.1% in interest of the Securities based on the initial Subscription Amounts under the Agreement;
WHEREAS, the Company requires additional funds for working capital prior to the Closing and has reached an agreement with certain Purchasers to fund additional convertible notes up to, in the aggregate, $1,608,842 which will be convertible into Preferred Stock on the Closing Date thereby reducing cash Subscription Amounts to be received by the Company at the Closing;
WHEREAS, the Holders purchased at least 50.1% in interest of the Securities based on the initial Subscription Amounts under the Agreement; and
WHEREAS, the Company and the Holders desire to amend certain provisions of the Agreement as further set forth herein in connection with the issuance by the Company of the convertible notes referred to above and to reflect certain additional agreements of the parties.
NOW, THEREFORE, for good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the Company and the Holders hereby agree as follows:
1. Additional Definitions to Section 1.1 of the Agreement. The following terms shall be added to Section 1.1 of the Agreement:
“May Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of May 24, 2021, among Fr8hub and the purchasers of May Convertible Notes named therein.
“May Convertible Notes” means Fr8hub’s Convertible Promissory Notes issued pursuant to the May Note Purchase Agreement, held by certain Purchasers, with an aggregate principal amount of $1,608,842. Schedule C to this Agreement sets forth a list of (i) the name of each Purchaser that is purchasing shares of Preferred Stock and Warrants under this Agreement through the cancellation of May Convertible Notes pursuant to the terms thereof and as specified in this Agreement, (ii) a description of the Convertible Note(s) held by each such Purchaser, and (iii) the aggregate amount of outstanding principal amount and accrued and unpaid interest of each such May Convertible Note that is being converted by such Purchaser (at the rate of 266.67% thereof) into shares of Preferred Stock and Warrants pursuant to the terms of such May Convertible Notes and as specified in this Agreement.
[Amendment to Securities Purchase Agreement]
“Series D Warrants” shall mean the warrants delivered in connection with the purchase of Securities for Subscription Amounts related to the conversion of the May Convertible Notes which warrants shall be issued immediately following the closing of the Merger in accordance with Section 2.2(b) hereof, which Warrants shall be exercisable immediately, at an exercise price equal to $1.125, subject to adjustment therein and have a term of exercise equal to seven years, in the form of Exhibit E attached hereto.
2. Amendment and Restatement of Existing Definitions in Section 1.1 of the Agreement. The following terms in Section 1.1 of the Agreement shall be amended and restated as follows
“Post-Merger Company Preferred Stock” means the up to 52,063,216 shares of the Post-Merger Company’s Series Convertible Preferred Stock issued hereunder in exchange for the Preferred Stock having the rights, preferences and privileges set forth in the Post-Merger Company Certificate of Designation, in the form of Exhibit C hereto.
“Preferred Stock” means the up to 11,201,095 shares of the Company’s Series A3 Convertible Preferred Stock issued hereunder having the rights, preferences and privileges set forth in the Fourth Amended and Restated Certificate of Incorporation.
“Stated Value” means the stated value per share of Preferred Stock which shall equal the product of (A) the quotient determined by dividing (I) the difference between (a) 28,900,900 and (b) the quotient determined by dividing (i) the aggregate cash Subscription Amounts (excluding for such purposes Subscription Amounts derived from Convertible Notes), divided by (ii) 1.5, divided by (II) 17,742,045, and (B) 3.
“Subscription Amount” means, with respect to each Purchaser, one or a combination of the following as specified below such Purchaser’s name on the signature page of this Agreement under the heading “Subscription Amount”: (i) an amount of cash in United States dollars, and/or (ii) the principal amount and accrued and unpaid interest under the October Convertible Notes held by such Purchaser to be converted into shares of Preferred Stock and Warrants upon the cancellation of such October Convertible Notes in accordance with their terms and pursuant to the terms of this Agreement , and/or (iii) the principal amount and accrued and unpaid interest under the January Convertible Notes held by such Purchaser to be converted into shares of Preferred Stock and Warrants upon the cancellation of such January Convertible Notes in accordance with their terms and pursuant to the terms of this Agreement, and/or (iv) the principal amount and accrued and unpaid interest under the May Convertible Notes held by such Purchaser to be converted into shares of Preferred Stock and Warrants upon the cancellation of such May Convertible Notes in accordance with their terms and pursuant to the terms of this Agreement
[Amendment to Securities Purchase Agreement]
“Warrants” means, collectively, the Series A Warrants, the Series B Warrants, the Series C Warrants and the Series D Warrants.”
3. Amendments to Section 2.1. The first sentence of Section 2.1 shall be amended and restated as follows: “On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of up to $44,625,613 in Stated Value of shares of Preferred Stock pursuant to the terms of this Agreement. Section 2.1 shall be further amended such that all references therein to “the January Note Purchase Agreement and/or the October Note Purchase Agreement” shall hereafter be deemed to be references to “the January Note Purchase Agreement and/or the October Note Purchase Agreement and/or the May Note Purchase Agreement”.
4. Amendments to Section 2.2. Section 2.2 is hereby amended to add thereto a new Section 2.2(a)(vi) as follows, and to renumber the current Sections 2.2(a)(vi) and 2.2(a)(vii) accordingly: “as to Securities issued for conversion of May Convertible Notes, a certificate evidencing a number of shares of Preferred Stock equal to 100% of such Purchaser’s applicable Subscription Amount divided by the Stated Value, registered in the name of such Purchaser and evidence of the filing and acceptance of the Fourth Amended and Restated Certificate of Incorporation from the Secretary of State of Delaware;”.
5. Amendments to Section 4.18. Section 4.18(a) is hereby amended to add thereto a new Section 4.18(a)(iv) and to renumber the current Sections 4.18(a)(iv) and 4.18(a)(v) accordingly: “as to Securities issued for conversion of May Convertible Notes, a Series D Warrant registered in the name of such Purchaser to purchase up to a number of shares of common stock of the Post-Merger Company equal to 100% of the Post Merger Company Conversion Shares initially issuable upon conversion of such Purchaser’s Post-Merger Preferred (assuming for such purposes that the allocation of the Issuable Maximum as to such Post-Merger Company Conversion Shares is 1,430,082.
6. Acknowledgement of Revised Certificate of Designation. The parties hereto acknowledge and agree to the revised Certificate of Designation, Exhibit C to the Agreement, as attached hereto
7. Acknowledgment of Revised Warrant. The parties hereto acknowledge and agree to the revised Warrant, Exhibit E to the Agreement as attached hereto.
8. Amendments to ATW Signature Pages. The parties hereto acknowledge and agree to the revised executed signature pages to the Agreement of ATW Opportunities Master Fund, L.P. and ATW Master Fund II attached to this Amendment as Annex A and Annex B.
[Amendment to Securities Purchase Agreement]
9. Miscellaneous.
(a) Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.
(b) No Modification. Except as expressly set forth herein, the Agreement is and shall remain unchanged and in full force and effect, and nothing contained in this Amendment shall, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the parties, or shall alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Agreement.
(c) Governing Law. This Amendment and all actions arising out of or in connection with this Amendment shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
(d) Counterparts. This Amendment may be executed in any number of counterparts, including counterparts transmitted by facsimile or other electronic transmission, and by different parties hereto in separate counterparts, with the same effect as if all parties had signed the same document. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument.
[Signature Pages Follow]
[Amendment to Securities Purchase Agreement]
The parties hereto have caused this Amendment to be duly executed and delivered by their duly authorized officers as of the day and year first above written.
| FREIGHTHUB, INC. | ||
| By: | /s/ Xxxx Xxxxxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxxxxx | |
| Title: | Chief Financial Officer | |
[Signature Page to Amendment to Securities Purchase Agreement]
The parties hereto have caused this Amendment to be duly executed and delivered by their duly authorized officers as of the day and year first above written.
Name of Purchaser: ________________________________________________________
Signature of Authorized Signatory of Purchaser: __________________________________
Name of Authorized Signatory: ____________________________________________________
Title of Authorized Signatory: _____________________________________________________
[Signature Page to Amendment to Securities Purchase Agreement]
Annex A
Amended Signature Page of ATW Opportunities Master Fund, L.P.
(Attached hereto)
[Signature Page to Amendment to Securities Purchase Agreement]
PURCHASER SIGNATURE PAGES TO fr8hub and husn SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: ATW Opportunities Master Fund, L.P., by ATW Partners Opportunities Fund GP, LLC, its General Partner
Signature of Authorized Signatory of Purchaser: /s/ Xxxxxxx Xxxx-Xxxxxxx, Xx.
Name of Authorized Signatory: Xxxxxxx Xxxx-Xxxxxxx
Title of Authorized Signatory: Managing Partner
Email Address of Authorized Signatory: xxxxxx@xxxxxxxxxxx.xxx
Address for Notice to Purchaser: 000 Xxxx 00xx Xxxxxx 0000, Xxx Xxxx, XX 00000
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription Amounts:
Cash:
$4,100,850, subject to the final paragraph of this signature page.
Principal of January Convertible Notes: $1,000,000
Principal of October Convertible Notes: $2,050,425
Principal of May Convertible Notes: $1,000,000
Shares of Preferred Stock:
From Cash (200%): 2,733,900, subject to the final paragraph of this signature page.
From January Convertible Notes (250%): 833,333
From October Convertible Notes (400%): 2,733,900
From May Convertible Notes (266.67%): 888,889
Warrant Shares (calculated per Section 4.18(a)): 2,733,900 Series A Warrant Shares (subject to the final paragraph of this signature page), 833,333 Series B Warrant Shares, 2,733,900 Series C Warrant Shares and 888,889 Series D Warrant Shares.
EIN Number: 00-0000000
ATW Opportunities Master Fund, L.P. may in its sole discretion elect at any time prior to the Closing, by written notice of such election delivered to the Company, to reduce its $4,100,850 cash subscription amount set forth above by all or any portion it may so elect of the principal and accrued and unpaid interest of January Convertible Notes and/or May Convertible Notes being converted at Closing by ATW Opportunities Master Fund, L.P. In the case of any such election by ATW Opportunities Master Fund, L.P. (i) the $4,100,850 cash subscription amount set forth above shall automatically be reduced on a dollar-for-dollar basis to the extent of such election, (ii) the number of shares of Preferred Stock issuable from cash at the rate of 200% set forth above shall be correspondingly reduced, and (iii) the number of Series A Warrant Shares calculated per Section 4.18(a) set forth above shall be correspondingly reduced.
[SIGNATURE PAGES CONTINUE]
[Signature Page to Amendment to Securities Purchase Agreement]
Annex B
Amended Signature Page of ATW Master Fund II, L.P.
[Signature Page to Amendment to Securities Purchase Agreement]
PURCHASER SIGNATURE PAGES TO fr8hub and husn SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: ATW Master Fund II, L.P., by ATW Partners XX XX, LLC, its General Partner
Signature of Authorized Signatory of Purchaser: /s/ Xxxxxxx Xxxx-Xxxxxx, Xx.
Name of Authorized Signatory: Xxxxxxx Xxxx-Xxxxxxx
Title of Authorized Signatory: Managing Partner
Email Address of Authorized Signatory: xxxxxx@xxxxxxxxxxx.xxx
Address for Notice to Purchaser: 000 Xxxx 00xx Xxxxxx 0000, Xxx Xxxx, XX 00000
Address for Delivery of Securities to Purchaser (if not same as address for notice):
Subscription Amounts:
Cash:
$608,842, subject to the final paragraph of this signature page.
Principal of January Convertible Notes: None.
Principal of October Convertible Notes $304,421.
Principal of May Convertible Notes: $608,842
Shares of Preferred Stock:
From Cash (200%): 405,894, subject to the final paragraph of this signature page.
From January Convertible Notes (250%): None.
From October Convertible Notes (400%): 405,894
From May Convertible Notes (266.67%): 541,193
Warrant Shares (calculated per Section 4.18(a)): 405,894 Series A Warrant Shares (subject to the final paragraph of this signature page, 405,894 Series C Warrant Shares and 541,193 Series D Warrant Shares.
EIN Number: 00-0000000
ATW Master Fund II, L.P. may in its sole discretion elect at any time prior to the Closing, by written notice of such election delivered to the Company, to reduce its $608,842 cash subscription amount set forth above by all or any portion it may so elect of the principal and accrued and unpaid interest of January Convertible Notes and/or May Convertible Notes being converted at Closing by ATW Master Fund II, L.P. In the case of any such election by ATW Master Fund II, L.P. (i) the $608,842 cash subscription amount set forth above shall automatically be reduced on a dollar-for-dollar basis to the extent of such election, (ii) the number of shares of Preferred Stock issuable from cash at the rate of 200% set forth above shall be correspondingly reduced, and (iii) the number of Series A Warrant Shares calculated per Section 4.18(a) set forth above shall be correspondingly reduced.
[Signature Page to Amendment to Securities Purchase Agreement]
