ASBP 8-K
Aspire Biopharma Holdings, Inc. (ASBP)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Securities Exchange Act of 1934
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Item 1.01. Entry into a Material Definitive Agreement.
Purchase Agreement
As previously reported, in the Company’s Current Report on Form 8-K filed on June 12, 2026 (the “June 8-K”), Aspire Biopharma Holdings, Inc. (the “Company”) entered into a purchase agreement (the “Purchase Agreement”) with FireFish TopCo, LLC (the “Seller”), pursuant to which (i) the Seller agreed to sell, and cause the applicable Sellers to sell, and the Company agreed to purchase or cause certain of its Affiliates to purchase, all of the equity interests in certain of Seller’s subsidiaries set forth in Annex C of the Purchase Agreement (the aforementioned equity interests, collectively, the ‘Transferred Equity Interests”, and such subsidiaries, “Transferred Entities”), free and clear of all Liens, other than the Permitted Liens and in accordance with the applicable Local Transfer Documents and (ii) the Seller agreed to sell, and cause the applicable Sellers to sell, and the Company agreed to purchase, or cause certain of its affiliates to purchase, all of the assets of the other Business Entities, as defined in the June 8-K, constituting the balance of the Business. The terms of the Purchase Agreement, and related consideration are described in the June 8-K and are incorporated herein by reference. This Current Report on Form 8-K reports the closing of the Purchase Agreement.
The Purchase Agreement was previously filed as Exhibits 10.1 to the June 8-K and are incorporated herein by reference. The summary of the terms of the Purchase Agreement in the June 8-K are subject to, and qualified in their entirety by, the full text of such documents including the defined terms therein, which are incorporated herein by reference from the June 8-K.
Escrow and Closing Agreement
On August 6, 2026, the Company and the Seller entered into an Escrow and Closing Agreement (the “Closing Agreement”), pursuant to which the parties acknowledged and agreed that all conditions to the closing of the transactions contemplated by the Purchase Agreement (the “Closing”) had been irrevocably satisfied or irrevocably waived by the party entitled to the benefit thereof, and that all Transaction Documents, certificates and other deliverables required to effect the Closing (collectively, the “Closing Documents”) had been duly executed and irrevocably delivered by the parties and were being held in escrow by the parties (or their respective counsel) pending automatic release as described below.
Pursuant to the Closing Agreement, the Closing Documents were automatically released from escrow without any further action, and the Closing occured automatically and without any further action, immediately upon payment by the Company to the Seller of the Closing Purchase Price in accordance with the closing statement delivered by the Seller to the Company on July 28, 2026 under the Purchase Agreement.
The Company agreed to immediately pay the Closing Purchase Price to the Seller upon receipt of funds from its debt financing source (the “Financing”). The Closing Agreement provides that the Financing is not, and was not, a condition to the Closing, that the Seller entered into the Closing Agreement as an accommodation to the Company and without prejudice to the Seller’s rights (including its right to terminate the Purchase Agreement pursuant to Section 9.01(c) or Section 9.01(e) thereof to the extent the Closing does not promptly occur after July 31, 2026), and that the Company will use reasonable best efforts to obtain the Financing so as to enable it to pay the Closing Purchase Price as promptly as possible.
The foregoing summary of the Closing Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Closing Agreement, a copy of which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference.
Working Capital Financing Facility; Note Purchase Agreement
On July 31, 2026, the board of directors of the Company (the “Board”) adopted resolutions by written consent authorizing the Company to issue convertible promissory notes (the “Notes”) pursuant to a Convertible Promissory Note Purchase Agreement, dated as of August 6, 2026 (the “Note Purchase Agreement”), by and among the Company and the investors named therein (the “Investors”). Pursuant to the Note Purchase Agreement, the Company issued and sold to the Investors Notes in an aggregate principal amount of $3,750,000, for an aggregate purchase price of $3,000,000, reflecting an original issue discount of 20% (the “Working Capital Transaction”). The proceeds of the Working Capital Transaction are intended to provide additional working capital for the Company’s business and to allow for flexibility to pursue future growth opportunities that the Company may identify in the future.
The Board ratified, confirmed, consented to and approved the Company’s entry into the Purchase Agreement, and authorized the Company’s officers to negotiate, execute, deliver and perform the Note Purchase Agreement and related ancillary documents, and to issue the Conversion Shares (as defined below) upon conversion of the Notes.
The Notes are convertible into shares of the Company’s common stock, par value $0.0001 per share (the “Conversion Shares”), in accordance with the terms of the Notes. The conversion price applicable to the Notes is $8.00 per share.
The foregoing summary of the Note Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Note Purchase Agreement and the form of Note, copies of which are filed as Exhibit 10.3 and Exhibit 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
RBW Capital Partners LLC acted as exclusive financial advisor to the Company in connection with the foregoing transactions. Any securities or brokerage services were offered through Dawson James Securities, Inc. RBW received a placement agency fee in the equal to 8% of the purchase price and non-accountable expenses in the amount of 1%.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure set forth under Item 1.01 above regarding the Notes and the Note Purchase Agreement is incorporated herein by reference. As described above, the Company issued Notes in an aggregate principal amount of $3,750,000 for an aggregate purchase price of $3,000,000, reflecting an original issue discount of 20%, pursuant to the Note Purchase Agreement. The proceeds of the Notes are intended to provide additional working capital for the Company’s business and to allow for flexibility to pursue future growth opportunities that the Company may identify in the future.
Item 3.02. Unregistered Sales of Equity Securities.
The disclosure set forth under Item 1.01 above regarding the Notes and the Conversion Shares is incorporated herein by reference. The Notes, and the Conversion Shares issuable upon conversion of the Notes, were offered and sold, and will be issued, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and/or Rule 506(b) of Regulation D promulgated thereunder, based on representations from the Investors that each is an “accredited investor” as defined in Rule 501(a) of Regulation D, and in a transaction not involving a public offering and without any form of general solicitation or general advertising.
Item 7.01 Regulation FD Disclosure.
On August 10, 2026, the Company issued a press release, a copy of which is furnished as Exhibit 99.1 to this Form 8-K.
The information furnished pursuant to this Item 7.01, including Exhibit 99.1 shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, and shall not be deemed to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Item 9.01 Financial Statements and Exhibits.
| Exhibit Number | Description | |
| 10.1* | Form of Purchase Agreement, dated June 10, 2026, by and among Aspire Biopharma Holdings, Inc. and FireFish TopCo, LLC | |
| 10.2 | Escrow and Closing Agreement, dated as of August 6, 2026, by and between FireFish TopCo, LLC and Aspire Biopharma Holdings, Inc. | |
| 10.3 | Convertible Promissory Note Purchase Agreement, dated as of August 6, 2026, by and among Aspire Biopharma Holdings, Inc. and the Investors named therein. | |
| 10.4 | Form of Convertible Promissory Note. | |
| 99.1 | Press Release dated August 10, 2026. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
* The schedules, exhibits or similar attachments have been omitted from this filing pursuant to Item 601(b)(2) of Regulation S-K. The Company will furnish copies of any schedules, exhibits or similar attachments to the Securities and Exchange Commission upon request.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned hereunto duly authorized.
Date: August 10, 2026
| Aspire Biopharma Holdings, Inc. | ||
| By: | /s/ Kraig T. Higginson | |
| Name: | Kraig T. Higginson | |
| Title: | Chief Executive Officer and Chairman | |
Exhibit 10.2
Agreement
THIS AGREEMENT (this “Agreement”), effective as of July 31, 2026, is entered into by and among FireFish TopCo, LLC, a Delaware limited liability company (the “Seller”), and Aspire Biopharma Holdings, Inc., a Delaware corporation (the “Purchaser”). Capitalized terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such terms in the Purchase Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Seller and Purchaser are parties to that certain Purchase Agreement, dated as of June 10, 2026 (as amended, the “Purchase Agreement”); and
WHEREAS, the parties desire to set forth their agreement regarding the escrow and release of all Transaction Documents to effect the Closing, and regarding certain remedies available to Seller in the event Purchaser fails to consummate the Closing, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
SECTION 1. Satisfaction of Closing Conditions; Closing Documents in Escrow. The parties acknowledge and agree that all conditions to the Closing of the Transactions contemplated by the Purchase Agreement have been irrevocably satisfied (or irrevocably waived by the party entitled to the benefit thereof), and that all Transaction Documents, certificates or deliverables required or necessary to effect the Closing or otherwise contemplated by the Purchase Agreement (including those to effectuate the Transactions in each of the jurisdictions in which the Transferred Entities are organized) (collectively, the “Closing Documents”) have been duly executed and irrevocably delivered by the parties and are being held in escrow by the parties (or their respective counsel), pending automatic release as provided in Section 2 below.
SECTION 2. Automatic Release of Closing Documents; Deemed Closing. The Closing Documents shall be automatically released without any further action from escrow, and the Closing shall be deemed to occur, automatically and without any further action, immediately upon payment by Purchaser to Seller of the Closing Purchase Price in accordance with the Closing Statement delivered by Seller to Purchaser on July 28, 2026 in accordance with the Purchase Agreement.
SECTION 3. Payment of Closing Purchase Price upon Receipt of Financing. Purchaser hereby agrees that it shall immediately pay the Closing Purchase Price to Seller upon receipt of funds from its debt financing source (the “Financing”), it being acknowledged and agreed that (i) the Financing is not, and was not, a condition to Closing, (ii) Seller has agreed to this Agreement as an accommodation to Purchaser and without prejudice to its rights (including its right to terminate the Purchase Agreement pursuant to Section 9.01(c) or Section 9.01(e) thereof to the extent the Closing does not promptly occur after the date of this Agreement), and (iii) Purchaser will use reasonable best efforts to obtain funds from the Financing so as to enable it to pay the Closing Purchase Price as promptly as possible; provided, however, that notwithstanding clause (ii) above, so long as Purchaser uses reasonable best efforts to obtain the Financing and pays the Closing Purchase Price on or before 4:00 p.m. San Diego time by August 4, 2026 (the “Outside Date”), Seller shall not, and shall cause its Affiliates not to, terminate the Purchase Agreement, assert any default, breach or “intentional breach” under Section 9.02 of the Purchase Agreement, or seek any Reverse Termination Fee or other remedy, in each case solely arising from the failure of the Closing to occur prior to such payment; provided further, that the Outside Date may be extended for an additional five (5) Business Days at Seller’s sole discretion.
SECTION 4. Miscellaneous. This Agreement, together with the Purchase Agreement and the other Transaction Documents, constitutes the entire agreement of the parties with respect to the subject matter hereof. This Agreement may be amended, restated, supplemented or otherwise modified only by a written instrument signed by each of Seller and Purchaser, and no term or condition of this Agreement may be waived except by a written instrument signed by the party against whom enforcement of such waiver is sought; no course of dealing or failure or delay by any party in exercising any right hereunder shall operate as a waiver thereof. Without limiting the generality of the foregoing, the provisions of Section 11.02 (Amendment and Modifications), Section 11.04 (Waiver), Section 11.05 (Notices), Section 11.09 (Governing Law), Section 11.10 (Submission to Jurisdiction), Section 11.12 (Waiver of Jury Trial) and Section 11.13 (Counterparts) of the Purchase Agreement are incorporated herein by reference, mutatis mutandis, provided that references therein to “this Agreement” shall be deemed to refer to this Agreement.
[Remainder of page intentionally left blank; signature page follows.]
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the date first written above.
| SELLER: | ||
| FireFish TopCo, LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
| PURCHASER: | ||
| Aspire Biopharma Holdings, Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
[Signature page to Closing Agreement]
Exhibit 10.3
SECURED CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
THIS SECURED CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT (this “Agreement”), dated as of August 6, 2026, is entered into by and among Aspire Biopharma Holdings, Inc., a Delaware corporation (the “Company”), and the persons listed on Schedule 1 attached hereto (each, an “Investor” and collectively, the “Investors”).
WHEREAS, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506(b) promulgated thereunder, the Company and the Investors have agreed that the Company will issue and sell to the Investors Convertible Promissory Notes, (the “Notes”), such form of Note attached hereto as Exhibit A, convertible into capital stock of the Company further to the terms set forth in the Notes, all as more fully set forth below.
WHEREAS, the Notes carry an original issue discount of 20% (the “OID”), which is included in the principal balance of the Notes such that the aggregate purchase price of the Notes is $3,000,000 and the aggregate principal amount of the Notes is $3,750,000; and
WHEREAS, upon an Event of Default, as defined in the Notes, the principal amount of the Notes shall be convertible, at the option of the Investor, into shares of the Company’s common stock as set forth in the Notes (such shares issuable upon conversion of the Notes being known as the “Conversion Shares”).
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto hereby agree as follows:
1. Sale and Issuance of the Notes. At the Closing (as defined below), the Company shall sell and issue to each Investor, and each Investor shall purchase and acquire from the Company, upon the terms and conditions set forth herein, a Note in the original principal amount and for the purchase price as is set forth on the Investor’s signature page to this Agreement. Each Investor’s obligations hereunder pursuant to the transaction contemplated hereby shall be several, but not joint.
2. Closing of Sale of the Notes.
(a) The closing with respect to the transactions contemplated hereby, shall take place remotely via the exchange of documents and signatures simultaneously with the execution hereof (the “Closing”).
(b) At the Closing, each Investor who shall purchase a Note hereunder shall deliver to the Company (i) an executed signature page to this Agreement, completed and executed by such Investor, and (ii) payment by wire transfer for the purchase price of the Note to be purchased by each such Investor, as set forth on such signature page.
(c) As of the date of the Closing, the Company shall issue and deliver to each Investor an executed Note, substantially in the form of Exhibit A attached hereto, in the original principal amount as is set forth on the signature page of such Investor delivered to the Company hereunder and on Schedule 1 attached hereto opposite such Investor’s name. Each Investor shall be issued such Note upon receipt by the Company of consideration that equals the purchase price of such Note, by wire transfer of funds, to the account designated by the Company in accordance with this Agreement. The rights of each Investor with respect to such Investor’s Note shall be as set forth in the Note and this Agreement.
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3. Representations and Warranties of the Company to the Investors. The Company hereby represents and warrants to the Investors as follows:
(a) Organization, Good Standing and Qualification. The Company and each of its wholly- owned subsidiaries (the “Subsidiaries”) has been duly incorporated, organized or formed and validly exists as a corporation or limited liability company in good standing under the laws of the state of its incorporation, organization or formation. The Company and each of its Subsidiaries has all requisite power and authority to carry on its business as it is currently being conducted and to own, lease and operate its properties. The Company and each of its Subsidiaries is duly qualified to do business and is in good standing as a foreign corporation, partnership or limited liability company in each jurisdiction in which the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except, in each case, for those failures to be so qualified or in good standing which (individually and in the aggregate) would not reasonably be expected to result in a material adverse change to (A) the business, condition (financial or otherwise), results of operations, shareholders’ equity, properties or prospects of the Company or any of its Subsidiaries (as hereinafter defined), taken as a whole; or (B) the ability of the Company to perform its obligations under this Agreement or consummation of any of the other transactions contemplated by this Agreement (a “Material Adverse Effect”).
(b) Authorization of this Agreement and the Notes. The execution, delivery and performance by the Company of this Agreement and the Notes and of the transactions contemplated hereby and thereby have been duly authorized by all requisite action on the part of the Company. Each of this Agreement and the Notes has been duly executed and delivered by the Company and constitutes a valid and binding obligation of the Company, enforceable in accordance with its respective terms except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.
(c) Governmental Consents. All consents, approvals, orders or authorizations of, or registrations, qualifications, designations, declarations or filings with, any governmental authority required on the part of the Company in connection with the execution of this Agreement and the issuance of the Notes has been obtained.
(d) Compliance with Laws. To its knowledge, the Company is not in violation of any applicable statute, rule, regulation, order or restriction of any domestic or foreign government or any instrumentality or agency thereof with respect to the conduct of its business or the ownership of its assets, the violation of which would materially and adversely affect the business, assets, liabilities, financial condition or operations of the Company.
(e) Compliance with Other Instruments. The Company is not in violation or default of any term of its Certificate of Incorporation or Bylaws, as amended from time to time, or of any provision of any mortgage, indenture or contract to which it is a party and by which it is bound or of any judgment, decree, order or writ, other than such violation(s) that would not have a material adverse effect on the Company. The execution, delivery and performance of this Agreement and the Notes will not result in any such violation or be in conflict with, or constitute, with or without the passage of time and giving of notice, either a default under any such provision, instrument, judgment, decree, order or writ or an event that results in the creation of any lien, charge or encumbrance upon any assets of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations or any of its assets or properties.
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(f) Issuance of the Securities. The Notes are duly authorized and, when issued and paid for in accordance with the applicable provisions herein and in the Notes, will be duly and validly issued, fully paid and nonassessable, free and clear of all liens imposed by the Company. The Conversion Shares, when issued upon conversion of the Notes, will be validly issued, fully paid and nonassessable, free and clear of all liens or encumbrances imposed by the Company.
(g) Capitalization. The capitalization of the Company is as set forth in its SEC Reports, as that term is defined below. The Company has not issued any capital stock since its most recently filed periodic report under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) other than as set forth in its SEC filings, pursuant to the conversion of shares of the Company’s Series A Convertible Preferred Stock issued under that certain Certificate of Designations, Preferences and Rights of the Series A Convertible Preferred Stock of the Company, filed with the Secretary of State of the State of Delaware on February 2, 2026 (the “Series A COD”), the exercise of awards under the Company’s equity incentive plans, the issuance of shares of Common Stock pursuant to the Company’s incentive plans, the issuance of shares of Common Stock or Common Stock Equivalents pursuant to agreements outstanding as of the date of the most recently filed periodic report under the Exchange Act. No person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the this Agreement or the Notes. Except as set forth in its SEC Reports, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Notes or the Conversion Shares will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any person (other than the Investors) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
(h) SEC Reports; Financial Statements. Since December 31, 2025, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act of 1933, as amended (the “Securities Act”) and the Exchange Act (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”). As of their respective dates, the Company believes that the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and that none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
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(i) Material Changes; Undisclosed Events, Liabilities or Developments. Other than as set forth in its SEC Reports, since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, to the best of the Company’s knowledge (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice, and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the SEC, (iii) the Company has not altered its method of accounting, and (iv) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock.
(j) Litigation. Except as set forth in its SEC Reports, there is no action, suit, notice of violation, proceeding or investigation, inquiry or other similar Proceeding of any federal or state governmental authority pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of this Agreement or the Notes or the issuance of the Notes or the Conversion Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor to the Company’s knowledge any director or officer thereof, is or has been the subject of any Action involving the Company and a claim of violation of or liability under federal or state securities Laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company. To the knowledge of the Company, the SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k) Compliance. Except as set forth in its SEC Reports, neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local Laws and regulations relating to taxes, securities, environmental protection, occupational health and safety, product quality and safety, and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
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(l) Intellectual Property.
(i) Except as set forth in its SEC Reports, the Company owns or possesses or has the right to use pursuant to a valid and enforceable written license, sublicense, agreement, or permission all Intellectual Property necessary for the operation of the business of the Company as presently conducted, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect. As used in this Section 3(l), “Intellectual Property” means the following: (A) patent and patent Rights; (B) trademarks; (C) copyrights, designs, data and database rights and registrations and applications for registration thereof; (D) inventions, invention disclosures, statutory invention registrations, trade secrets and confidential business information, know-how, scientific and technical information, data and technology, manufacturing and product processes, algorithms, techniques and analytical methodology, and research and development information, whether patentable or nonpatentable, whether copyrightable or noncopyrightable and whether or not reduced to practice; and (E) other proprietary rights relating to any of the foregoing.
(ii) The Company has no knowledge that the Intellectual Property interferes with, infringes upon, misappropriate, or otherwise come into conflict with, any Intellectual Property rights of third parties, and the Company has no knowledge that facts exist which indicate a likelihood of the foregoing. The Company has not received any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or conflict (including any claim that the Company must license or refrain from using any Intellectual Property rights of any third party). To the knowledge of the Company, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with, any Intellectual Property rights of the Company, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect
(m) Listing and Maintenance Requirements. Since February 3, 2026, the Company has not received notice from Nasdaq Capital Market (“Nasdaq”) to the effect that the Company is not in compliance with the listing or maintenance requirements of Nasdaq. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in material compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company (“DTC”) or another established clearing corporation and the Company is current in payment of the fees to the DTC (or such other established clearing corporation) in connection with such electronic transfer. The Company is not subject to any “chill” issued by the DTC.
(n) Offering. Assuming the accuracy of the representations and warranties of the Investors set forth herein, the offer, issue, and sale of the Notes (and the Conversion Shares) are and will be exempt from the registration and prospectus delivery requirements of the Securities Act, and have been registered or qualified (or are exempt from registration and qualification) under the registration, permit or qualification requirements of all applicable state securities laws.
(o) Knowledge. As used herein, the term “knowledge of the Company” (or similar language) shall mean the actual knowledge of the executive officers and directors of the Company.
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4. Representations and Warranties of the Investors to the Company. Each of the Investors, as to himself, herself or itself, represents and warrants to the Company as follows:
(a) The Investor is purchasing the Note, and if and when the Note is converted, will acquire the shares of the Company’s capital stock issuable upon conversion thereof, in each case for investment for the account of the Investor and not for the account of any other person, and not with a view toward resale or other distribution thereof. Such Investor understands that the Note being purchased by such Investor has not been, and when issued, the shares of the Company’s capital stock issuable upon conversion thereof, will not be registered under the Securities Act or applicable state securities laws and, therefore, cannot be resold unless they are subsequently registered under the Securities Act and applicable state securities laws or unless an exemption from such registration is available. The Investor further understands and agrees that, until so registered or transferred pursuant to the provisions of Rule 144 under the Securities Act, that any stock certificate or, in the case of uncertificated securities, any notice of issuance, for the shares of the Company’s capital stock issuable upon conversion thereof may bear the following legend:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND ARE “RESTRICTED SECURITIES” AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (I) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE ACT, (II) IN COMPLIANCE WITH RULE 144, OR (III) PURSUANT TO AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID SALE, OFFER OR DISTRIBUTION.”
(b) The Investor is an “accredited investor” (as defined in Rule 501 of Regulation D under the Securities Act. Such Investor or such Investor’s representative, during the course of this transaction and prior to the purchase of the Note being purchased by the Investor hereunder, has had the opportunity to ask questions of and receive answers from representatives of the Company concerning the terms and conditions of the offering of the Notes, and to obtain any additional information or documents relating to the Company, its business and an investment in the Company necessary to verify the accuracy of information provided by the Company relating to the business of the Company.
(c) Such Investor or such Investor’s representative is capable of evaluating the merits and risks of the purchase of the Notes. Such Investor has the capacity to protect his, her or its own interests in connection with the purchase of the Notes by reason of such Investor’s preexisting personal or business relationship with the Company or its partners, officers, directors or controlling persons, or by reason of such Investor’s business or financial experience or the business or financial experience of his, her or its representative (who is unaffiliated with and who is not compensated by the Company or any affiliate, directly or indirectly).
5. Closing Conditions.
(a) Conditions to Obligations of the Investors. It shall be a condition precedent to the obligations of the Investors hereunder to be performed at the Closing that:
(i) All representations and warranties of the Company shall be accurate, correct and complete on the date of the Closing.
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(ii) The Investors shall have received the duly executed Notes as set forth in Section 2(c) upon receipt by the Company from the Investors of the consideration set forth opposite each Investor’s name on Schedule 1 attached hereto.
(iii) The Company and each of its Subsidiaries shall have executed and delivered to the Investors such UCC-1 financing statements and other instruments as are necessary or appropriate to perfect the security interest granted to the Investors under Section 10 of this Agreement to secure the obligations under the Notes, which security interest shall be subordinate to any liens or security interests securing the Company’s existing indebtedness that is secured as of the Closing Date.
(b) Conditions to Obligations of the Company. It shall be a condition precedent to the obligations of the Company hereunder to be performed at the Closing that:
(i) All representations and warranties of the Investors shall be accurate, correct and complete on the date of the Closing.
(ii) The Company shall have received the wire transfers described in Section 2 hereof in consideration of the issuance of the Notes.
(iii) The Company shall have completed that certain acquisition of Dura Control Systems and its subsidiaries (the “Acquisition”), on terms and conditions satisfactory to the Investors.
6. Registration of Conversion Shares.
6.1 Registration Procedures and Expenses. The Company shall:
(a) As soon as practicable, but in no event later than 30 days after the Closing Date, prepare and file with the SEC a registration statement on Form S-1 relating to the resale of the Conversion Shares by the Investors from time to time on the Nasdaq, or the facilities of any national securities exchange on which the Common Stock is then traded or in privately-negotiated transactions (the “Resale Registration Statement”).
(b) Promptly prepare and file with the SEC such amendments and supplements to the Resale Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Resale Registration Statement effective until the earliest of (i) such time as all of the Conversion Shares purchased hereunder have been sold pursuant to the Resale Registration Statement, or (iii) such time as the Conversion Shares issued further to the Notes become eligible for resale without any volume limitations or other restrictions pursuant to Rule 144 under the Securities Act without the requirement to be in compliance with Rule 144(c)(1).
(c) Notwithstanding anything express or implied in this Agreement to the contrary, in the event that the SEC for any reason limits the number of Conversion Shares that may be included and sold by the Investors in the Resale Registration Statement, the Company shall: (i) reduce the number of Conversion Shares included in the Resale Registration Statement on behalf of the Investors in whole or in part (such portion shall be allocated pro rata among such Investors) (such excluded Conversion Shares, the “Reduction Securities”), (ii) give the Investors prompt notice of the number of such Reduction Securities excluded in connection with the exclusion of such Reduction Securities arising from any interactions between the Company and the SEC with respect to the number of Conversion Shares that may be included and sold by the Investors in the Resale Registration Statement, and (iii) use its commercially reasonable efforts at the first opportunity that is permitted by the SEC to register for resale the Reduction Securities (or such portion thereof as the SEC will allow to be registered for resale at such time) pursuant to a new registration statement covering the resale of the Reduction Securities (or such portion thereof as the SEC will allow to be registered for resale at such time) for an offering to be made on a continuous basis pursuant to Rule 415 and shall file such new registration statement with the SEC within thirty (30) calendar days following (x) the date that the SEC would allow or permit such additional registration statement to be filed or (y) the date on which the Company first learned the date that the SEC would allow or permit such additional registration statement to be filed, whichever of (x) or (y) is the later date.
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(d) Furnish to the Investor with respect to the Conversion Shares registered under the Resale Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of prospectuses and such other documents as the Investor may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Conversion Shares by the Investor.
(e) File documents required of the Company for normal Blue Sky clearance in states specified in writing by the Investor; provided, however, that the Company shall not be required to qualify to do business or consent to service of process in any jurisdiction in which it is not now so qualified or has not so consented.
(f) Bear all expenses in connection with the procedures in paragraphs (a) through (f) of this Section 6.1 and the registration of the Conversion Shares on behalf of the Investors pursuant to the Resale Registration Statement, other than fees and expenses, if any, of counsel or other advisers to the Investors or underwriting discounts, brokerage fees and SECs incurred by the Investors, if any in connection with the offering of the Conversion Shares on behalf of the Investors pursuant to the Resale Registration Statement.
6.2 Indemnification. For the purposes of this Section 6.2:
(a) For the purpose of this Section 6.2: (i) the term “Investor/Affiliate” shall mean any affiliate of the Investor, including a transferee who is an affiliate of the Investor, and any person who controls the Investor or any affiliate of the Investor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act; and (ii) the term “Resale Registration Statement” shall include any preliminary prospectus, final prospectus, free writing prospectus, exhibit, supplement or amendment included in or relating to, and any document incorporated by reference in, the Resale Registration Statement referred to in Section 6.1.
(b) The Company agrees to indemnify and hold harmless the Investor and each Investor/Affiliate, against any losses, claims, damages, liabilities or expenses, joint or several, to which the Investor or Investor/Affiliates may become subject, under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) (i) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in (1) the Resale Registration Statement, including the Prospectus, financial statements and schedules, and all other documents filed as a part thereof, as amended at the time of effectiveness of the Resale Registration Statement, including any information deemed to be a part thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rules 430B, 430C or 434, of the Rules and Regulations, or (2) the Prospectus, in the form first filed with the SEC pursuant to Rule 424(b) of the Regulations, or filed as part of the Resale Registration Statement at the time of effectiveness if no Rule 424(b) filing is required or any amendment or supplement thereto; (ii) arise out of or are based upon the omission or alleged omission to state in any of them a material fact required to be stated therein or necessary to make the statements in the Resale Registration Statement or any amendment or supplement thereto not misleading or in the Prospectus or any amendment or supplement thereto not misleading in light of the circumstances under which they were made; or (iii) arise out of or are based in whole or in part on any inaccuracy in the representations or warranties of the Company contained in this Agreement, or any failure of the Company to perform its obligations hereunder or under law, and will promptly reimburse the Investors and each Investor/Affiliate for any legal and other expenses as such expenses are reasonably incurred by the Investors or such Investor/Affiliate in connection with investigating, defending or preparing to defend, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the Company will not be liable for amounts paid in settlement of any such loss, claim, damage, liability or action if such settlement is effected without the consent of the Company, which consent shall not be unreasonably withheld, and the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon (A) an untrue statement or alleged untrue statement or omission or alleged omission made in the Resale Registration Statement, the Prospectus or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investors expressly for use therein; (B) the inaccuracy of any representation or warranty made by the Investors herein; or (C) any statement or omission in any Prospectus that is corrected in any subsequent Prospectus that was delivered to the Investors prior to the pertinent sale or sales by the Investor.
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(c) Each Investor will severally, but not jointly, indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Resale Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, against any losses, claims, damages, liabilities or expenses to which the Company, each of its directors, each of its officers who signed the Resale Registration Statement or controlling person may become subject, under the Securities Act, the Exchange Act, or any other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, but only if such settlement is effected with the written consent of the Investor) insofar as such losses, claims, damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of or are based upon (i) the inaccuracy of any representation or warranty made by the Investor herein; or (ii) any untrue or alleged untrue statement of any material fact contained in the Resale Registration Statement, the Prospectus, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements in the Resale Registration Statement or any amendment or supplement thereto not misleading or in the Prospectus or any amendment or supplement thereto not misleading in the light of the circumstances under which they were made, in each case under this clause (ii) to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Resale Registration Statement, the Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Investors expressly for use therein; and will reimburse the Company, each of its directors, each of its officers who signed the Resale Registration Statement or controlling person for any legal and other expense reasonably incurred by the Company, each of its directors, each of its officers who signed the Resale Registration Statement or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that each Investor’s aggregate liability under this Section 6 shall not exceed the amount of net proceeds received by such Investor on the sale pursuant to the Resale Registration Statement of the Conversion Shares purchased by the Investor.
(d) Promptly after receipt by an indemnified party under this Section 6.2 of notice of the threat or commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 6.2 promptly notify the indemnifying party in writing thereof, but the omission to notify the indemnifying party will not relieve it from any liability that it may have to any indemnified party for contribution or otherwise under the indemnity agreement contained in this Section 6.2 to the extent it is not prejudiced as a result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it may wish, jointly with all other indemnifying parties similarly notified, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party, and the indemnifying party and the indemnified party shall have reasonably concluded, based on an opinion of counsel reasonably satisfactory to the indemnifying party, that there may be a conflict of interest between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 6.2 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed such counsel in connection with the assumption of legal defenses in accordance with the proviso to the preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, reasonably satisfactory to such indemnifying party, representing all of the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of action, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party. The indemnifying party shall not be liable for any settlement of any action without its written consent. In no event shall any indemnifying party be liable in respect of any amounts paid in settlement of any action unless the indemnifying party shall have approved in writing the terms of such settlement; provided that such consent shall not be unreasonably withheld. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnification could have been sought hereunder by such indemnified party from all liability on claims that are the subject matter of such proceeding, unless such settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
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(e) If the indemnification provided for in this Section 6.2 is required by its terms but is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party under paragraphs (a), (b) or (c) of this Section 6.2 in respect to any losses, claims, damages, liabilities or expenses referred to therein, then each applicable indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Investor from the private placement of Notes hereunder or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but the relative fault of the Company and the Investor in connection with the statements or omissions or inaccuracies in the representations and warranties in this Agreement and/or the Resale Registration Statement that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Investor on the other shall be deemed to be in the same proportion as the amount paid by the Investor to the Company pursuant to this Agreement for the Conversion Shares purchased by the Investor that were sold pursuant to the Resale Registration Statement bears to the difference (the “Difference”) between the amount the Investor paid for the Conversion Shares that were sold pursuant to the Resale Registration Statement and the amount received by the Investor from such sale. The relative fault of the Company on the one hand and the Investor on the other shall be determined by reference to, among other things, whether the untrue or alleged statement of a material fact or the omission or alleged omission to state a material fact or the inaccurate or the alleged inaccurate representation and/or warranty relates to information supplied by the Company or by the Investor and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in paragraph (c) of this Section 6.2, any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in paragraph (d) of this Section 6.2 with respect to the notice of the threat or commencement of any threat or action shall apply if a claim for contribution is to be made under this paragraph (e); provided, however, that no additional notice shall be required with respect to any threat or action for which notice has been given under paragraph (d) for purposes of indemnification. The Company and the Investor agree that it would not be just and equitable if contribution pursuant to this Section 6.2 were determined solely by pro rata allocation (even if the Investor were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. Notwithstanding the provisions of this Section 6.2, the Investor shall not be required to contribute any amount in excess of the amount by which the Difference exceeds the amount of any damages that the Investor has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Investor’s obligation to contribute pursuant to this Section 6.2 are several and not joint with the Other Investors’ obligation to contribute pursuant to Section 6.2 of the Agreements between the Other Investors and the Company.
6.3 Registration Delay Payments. If (i) the Resale Registration Statement is not filed with the SEC on or prior to the date required under Section 6.1(a) (the “Filing Deadline”), (ii) the Resale Registration Statement is not declared effective by the SEC on or before the date that is forty-five (45) calendar days after the Closing Date (or, in the event of a review or a comment letter received in connection with the Resale Registration Statement by the SEC, seventy-five (75) calendar days after the Closing Date) (the “Effectiveness Deadline”), or (iii) after its initial effective date, the Resale Registration Statement ceases for any reason to remain continuously effective as to all Conversion Shares required to be included therein, or the Investors are otherwise not permitted to utilize the Resale Registration Statement or any prospectus contained therein to resell the Conversion Shares, in each case for more than ten (10) consecutive calendar days or an aggregate of fifteen (15) calendar days during any twelve (12)-month period (each such event described in clauses (i) through (iii), a “Registration Default”, and the date on which such Registration Default occurs, a “Registration Default Date”), then, in addition to any other rights the Investors may have hereunder or under applicable law, the Company shall pay to each Investor an amount in cash, as partial liquidated damages and not as a penalty, equal to two percent (2%) of the original principal amount of such Investor’s Note for the period from the Registration Default Date through the date that is thirty (30) days thereafter, and an additional two percent (2%), compounding, of the sum of the original principal amount of such Investor’s Note plus all liquidated damages previously accrued and unpaid under this Section 6.3 with respect to such Note, for each successive thirty (30) day period (or portion thereof) thereafter until such Registration Default is cured, it being agreed that there shall be no cap or maximum limit on the aggregate amount of liquidated damages payable under this Section 6.3. Such liquidated damages shall be paid in cash to each Investor within five (5) business days after the end of each such thirty (30) day period. The parties agree that the liquidated damages provided for in this Section 6.3 constitute a reasonable estimate of the damages that will be suffered by the Investors by reason of a Registration Default and are not a penalty.
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7. Reserved.
8. Miscellaneous.
a. Expenses. The Company shall pay its own expenses in connection with the transactions contemplated hereby, whether or not such transactions shall be consummated, and shall reimburse the Investor for the reasonable legal fees and expenses of Lucosky Brookman LLP, counsel to the Investor, in an amount of $25,000, which amount shall be payable at the Closing.
b. Waiver and Amendment. Any provision of this Agreement may be amended, waived or modified only by an instrument or writing signed by the Company and the holders of at least a majority of the principal amount of the Notes then outstanding. Any amendment or waiver affected in accordance with this Section 8(b) shall be binding upon the Company, the holders of the Notes and each permitted transferee of a Note.
c. Binding Effect. The rights and obligations of the Company and the holder of this Agreement shall be binding upon and benefit the successors, assigns, heirs, administrator and transferees of the parties.
d. Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware. without regard to the principles of conflicts of law of any other jurisdiction.
e. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
f. Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.
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g. Notices. Except as otherwise expressly provided herein, any notice required or permitted hereunder shall be given in writing and it or any certificates or other documents delivered hereunder shall be deemed effectively given or delivered (as the case may be) upon personal delivery (professional courier permissible) by electronic mail or facsimile (with written confirmation of receipt) or when mailed by registered or certified United States mail, three (3) business days after deposit in the United States mail. Such certificates, documents or notice may be personally delivered or sent to the following address: (i) if to the Investor, to the address listed on the signature page hereto or to such other address which an Investor shall have given notice pursuant hereto to the Company, or, (ii) if to the Company, to Aspire Biopharma Holdings, Inc.,23150 Fashion Drive, Ste 232, Estero, FL 33928.
Estero, FL 33928, Attention: President, or to such other address of which the Company shall have given notice pursuant hereto; and a copy (which shall not constitute notice) shall also be sent to Sichenzia Ross Ference Carmel, 1185 Avenue of Americas, 26th Floor, New York, NY 10036.
h. Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.
i. Number and Gender. Whenever used herein, the singular number shall include the plural and the plural shall include the singular, and the use of any gender shall be applicable to all genders.
j. Entire Agreement. This Agreement, the Notes and other documents delivered pursuant hereto constitute the full and entire understanding and agreement among the parties with regard to the subjects hereof and thereof and supersede any prior agreements (including any memorandum of understanding, term sheet or letters of intent) between the parties regarding the subject matter hereof.
k. Attorneys’ Fees. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement the prevailing party shall be entitled to reasonable attorneys’ fees, costs and disbursements in addition to any other relief to which such party may be entitled.
l. Usury. If it shall be found that any interest, original issue discount or other amount deemed interest due under the Notes violates the applicable law governing usury, the applicable provision shall automatically be revised to equal the maximum rate of interest or other amount deemed interest permitted under applicable law. The Company covenants (to the extent that it may lawfully do so) that it will not seek to claim or take advantage of any law that would prohibit or forgive the Company from paying all or a portion of the principal amount or interest, if any, due under the Notes.
9. Most Favored Nation. From the Closing Date until the date on which no principal, interest or other amounts remain outstanding under the Notes, if the Company issues any debt or equity securities, or enters into any agreement (or amendment thereto) providing any subsequent investor with terms that are more favorable in any material respect (including with respect to conversion price, interest rate, original issue discount, security, covenants, events of default, redemption rights, registration rights or similar terms) than the terms provided to the Investors under this Agreement or the Notes, the Company shall promptly, and in any event within three (3) business days, notify each Investor of such more favorable terms, and, at each Investor’s election, such more favorable terms shall be incorporated automatically into this Agreement and/or such Investor’s Note, as applicable, for so long as such more favorable terms remain applicable to such subsequent investor. This Section 9 shall not apply to (i) any strategic transaction approved by the Company’s board of directors that is not primarily undertaken for equity financing purposes, or (ii) issuances pursuant to the Company’s equity incentive plans approved by its board of directors.
10. Security Interest. As collateral for the full and timely payment and performance of the Company’s obligations under this Agreement and the Notes, the Company hereby grants, and shall cause each of its Subsidiaries to grant, to each Investor a security interest in substantially all of its assets, whether now owned or hereafter acquired. The Company shall, and shall cause each of its Subsidiaries to, execute and deliver such UCC-1 financing statements and other instruments, and take such further action, as the Investors may reasonably request to create, evidence and perfect such security interest. Such security interest shall be secured but subordinate in priority to any liens or security interests securing the Company’s existing indebtedness that is secured as of the Closing Date.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has executed this Convertible Promissory Note Purchase Agreement as of the date first above written.
| ASPIRE BIOPHARMA HOLDINGS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
[See Attached Investor Signature Pages]
| 13 |
IN WITNESS WHEREOF, the undersigned Investor has executed this Convertible Promissory Note Purchase Agreement as of the date first above written, hereby authorizes the Company to append this signature page to a counterpart of this Convertible Promissory Note Purchase Agreement as evidence thereof, and hereby subscribes for the purchase of a Note (as defined in this Convertible Promissory Note Purchase Agreement) in the original principal amount specified below.
Original Principal Amount of Note Subscribed For: ___________________
Purchase Price of Note Subscribed For: ___________________
Acknowledged and Accepted:
INVESTOR:
| (Print Full Name of Investor) | ||
| By: | ||
| Name: | ||
| Title: | ||
| (if applicable) | ||
| Address: | ||
| Email: | ||
[Signature Page to Convertible Promissory Note Purchase Agreement –
Aspire Biopharma Holdings, Inc.]
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Schedule 1
Schedule of Investors
| Name | Address | Principal Amount of Notes | ||
| 15 |
Exhibit A
Form of Secured Convertible Promissory Note
[See attached]
| 16 |
Exhibit 10.4
NEITHER THE ISSUANCE NOR SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES FILED PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
| Principal Amount: $_______ | Issue Date: July ____, 2025 |
Purchase Price with Original Issue Discount (“OID”): $_______
SECURED CONVERTIBLE PROMISSORY NOTE
FOR VALUE RECEIVED, Aspire Biopharma Holdings, Inc., a Delaware corporation (the “Borrower”), as of August 6, 2026 (the “Issue Date”), hereby promises to pay to the order of ___________ (the “Lender” and including its registered assigns, the “Holder”), the principal sum of $_______ (the “Principal Amount”) at maturity or upon acceleration or otherwise, as set forth herein (this “Note”). Upon an Event of Default, as such term is defined herein, the then outstanding Principal Amount shall automatically increase by 20%.
This Note is being issued by the Borrower to the Lender and other lenders pursuant to that certain Convertible Note Purchase Agreement (the “Purchase Agreement”) entered into by the Borrower, the Lender, and such other lenders on the Issue Date.
The maturity date of the Note shall be the date that is six (6) months from the Issue Date (the “Maturity Date,” as may be extended as set forth below), and is the date upon which the Borrower shall pay to the Holder an amount in cash representing all then outstanding Principal Amount and any other amounts outstanding pursuant to the terms of this Note. At the option of the Borrower, upon prior ten (10) days’ prior written notice to the Holder, the Maturity Date may be extended by up to two (2) additional one-month periods; each month extension will add an additional 5% to the OID (which shall automatically increase the then outstanding Principal Amount by the same amount), which shall be calculated on a daily basis. By way of example only, should the Borrower extend the Maturity Date one additional month, the OID on the Note shall be 25%, should it thereafter extend the Note for another additional month the OID on the Note shall be 30%.
All payments due hereunder (to the extent not converted into the Borrower’s Common Stock, par value $0.0001 per share (the “Common Stock”)) shall be made in lawful money of the United States of America. All payments shall be made at such address as the Holder shall hereafter give to the Borrower by written notice made in accordance with the provisions of this Note. Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a business day, the same shall instead be due on the next succeeding day which is a business day. As used in this Note, the term “business day” shall mean any day other than a Saturday, Sunday or a day on which commercial banks in the city of New York, New York are authorized or required by law or executive order to remain closed.
This Note is free from all taxes, liens, claims, and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Borrower and will not impose personal liability upon the holder thereof. Capitalized terms used in this Note shall have the meanings set forth in the Purchase Agreement unless otherwise defined in this Note.
This Note is a secured obligation of the Borrower and is secured by a security interest in and continuing lien upon all assets and property of the Borrower and each of its Subsidiaries, whether now owned or hereafter acquired, granted to the Holder pursuant to Section 10 of the Purchase Agreement, which security interest is subordinate in priority to any liens or security interests securing the Borrower’s existing indebtedness that is secured as of the Issue Date. The Borrower shall, and shall cause each of its Subsidiaries to, execute and deliver such UCC-1 financing statements and other instruments, and take such further action, as the Holder may reasonably request from time to time to create, evidence and perfect such security interest.
The following additional terms shall also apply to this Note:
ARTICLE I
1.1 Conversion Price. The conversion price shall be $8.00 per share of Common Stock (the “Conversion Price”). The Conversion Price shall be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification or similar transaction that proportionately decreases or increases the Common Stock.
1.2 Conversion; Company Cash Payment Option.
(a) Optional Conversion Right. The Holder shall have the right at any time to convert all or any part of the entire outstanding and unpaid Principal Amount of this Note into fully paid and non-assessable shares of Common Stock, as such Common Stock exists on the Issue Date, or any shares of capital stock or other securities of the Borrower into which such Common Stock shall hereafter be changed or reclassified at the Conversion Price (a “Conversion”). The number of shares of Common Stock to be issued upon each such conversion of this Note shall be determined by dividing the Conversion Amount (the portion of the Principal Amount being converted) by the applicable Conversion Price then in effect on the date specified in the notice of conversion, in the form attached hereto as Exhibit A (the “Notice of Conversion”), delivered to the Borrower by the Holder in accordance with Section 1.3 below; provided that the Notice of Conversion is submitted by facsimile or e-mail (or by other means resulting in, or reasonably expected to result in, notice) to the Borrower before 6:00 p.m., New York, New York time on such conversion date (the “Conversion Date”).
(b) Maximum Share Limitation. Notwithstanding the provisions of Section 1.2(a), in no event shall the Holder be entitled to convert any portion of this Note in excess of that portion of this Note upon conversion of which the sum of (1) the number of shares of Common Stock beneficially owned by the Holder and its affiliates (excluding shares of Common Stock which may be deemed beneficially owned through the ownership of the unconverted portion of this Note or the unexercised or unconverted portion of any other security of the Borrower subject to a limitation on conversion or exercise analogous to the limitations contained herein) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of this Note with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its affiliates of more than 4.99% of the outstanding shares of Common Stock (the “Maximum Share Amount”). The Holder, upon not less than 61 days’ prior written notice to the Borrower, may increase the Maximum Share Amount, provided that the Maximum Share Amount shall never exceed 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the provisions of this Section 1.2 shall continue to apply. Any such increase will not be effective until the 61st day after such notice is delivered to the Borrower. The Maximum Share Amount provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 1.2 to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum Share Amount provisions contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to any successor holder of this Note. For purposes of this Section 1.2, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such proviso.
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(c) Nasdaq 19.99% Cap. Notwithstanding anything to the contrary contained in this Note, Borrower and Holder agree that the total cumulative number of shares of Common Stock issued to Holder hereunder together with all other Transaction Documents may not exceed the requirements of Nasdaq Listing Rule 5635(d) (the “Nasdaq 19.99% Cap”). If the number of shares of Common Stock issued to Holder reaches the Nasdaq 19.99% Cap, any remaining outstanding balance of this Note must be repaid in cash.
(d) Change of Control Conversion. Notwithstanding the Holder’s right to convert this Note at any time pursuant to Section 1.2(a), upon the occurrence of a Change of Control, the entire outstanding Principal Amount of this Note shall, at the election of the Holder made by written notice to the Borrower at any time prior to the consummation of such Change of Control, automatically convert into shares of Common Stock at the Conversion Price immediately prior to the consummation of such Change of Control, or, at the Holder’s election, the Borrower shall prepay in cash the entire outstanding Principal Amount of this Note concurrently with the consummation of such Change of Control. The Borrower shall provide the Holder with written notice of a proposed Change of Control not less than ten (10) business days prior to the consummation thereof. For purposes of this Note, “Change of Control” means (i) the consummation of a merger, consolidation, share exchange, business combination, reorganization or similar transaction involving the Borrower, unless the persons who were the beneficial owners of the outstanding voting securities of the Borrower immediately prior to such transaction beneficially own, immediately after such transaction, more than 50% of the outstanding voting securities of the surviving or resulting entity, (ii) the sale, lease, exclusive license or other transfer, in one transaction or a series of related transactions, of all or substantially all of the assets of the Borrower and its Subsidiaries, taken as a whole, to a person or group that is not an affiliate of the Borrower, or (iii) the acquisition by any person or group (as defined under the Exchange Act) of beneficial ownership of more than 50% of the outstanding voting power of the Borrower’s Common Stock, other than in a transaction approved in advance by a majority of the Borrower’s board of directors as constituted immediately prior to such acquisition.
1.3 Authorized Shares. The Borrower covenants that during the period the conversion right exists, the Borrower will reserve from its authorized and unissued Common Stock a sufficient number of shares, free from preemptive rights, equal to 150% of the number of shares of Common Stock issuable upon the full conversion of this Note (the “Reserved Amount”). The Reserved Amount shall be increased from time to time in accordance with the Borrower’s obligations hereunder. The Borrower represents that upon issuance, such shares of Common Stock will be duly and validly issued, fully paid and non-assessable. In addition, if the Borrower shall issue any securities or make any change to its capital structure which would change the number of shares of Common Stock into which this Note shall be convertible at the Conversion Price, the Borrower shall at the same time make proper provision so that thereafter there shall be a sufficient number of shares of Common Stock authorized and reserved, free from preemptive rights, for conversion of this Note. The Borrower acknowledges that it has irrevocably instructed its transfer agent to issue certificates (or book-entry shares) for the Common Stock issuable upon conversion of this Note, and agrees that its issuance of this Note shall constitute full authority to its officers and agents who are charged with the duty of executing stock certificates (or applicable instructions for the issuance of book-entry shares) to execute and issue the necessary certificates (or book-entry shares) for shares of Common Stock in accordance with the terms and conditions of this Note.
If, at any time the Borrower does not maintain the Reserved Amount it will be considered an Event of Default under Section 3.2 of this Note; provided, that notwithstanding anything to the contrary herein, the Borrower shall only be required to confirm and adjust the Reserved Amount one time per calendar month.
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1.4 Method of Conversion.
(a) Mechanics of Conversion. Subject to Section 1.2(b), this Note may be converted by the Holder further to Section 1.2(a) in whole or in part at any time as described thereunder, (A) by submitting to the Borrower a Notice of Conversion (by facsimile, e-mail or other reasonable means of communication dispatched on the Conversion Date prior to 11:00 a.m., New York, New York time) and (B) subject to Section 1.4(b), surrendering this Note at the principal office of the Borrower.
(b) Surrender of Note Upon Conversion. Notwithstanding anything to the contrary set forth herein, upon conversion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Borrower unless the entire unpaid Principal Amount of this Note is so converted. The Holder and the Borrower shall maintain records showing the Principal Amount so converted and the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder and the Borrower, so as not to require physical surrender of this Note upon each such conversion. In the event of any dispute or discrepancy, such records of the Borrower shall, prima facie, be controlling and determinative in the absence of manifest error. Notwithstanding the foregoing, if any portion of this Note is converted as aforesaid, the Holder may not transfer this Note unless the Holder first physically surrenders this Note to the Borrower, whereupon the Borrower will forthwith issue and deliver upon the order of the Holder a new Note of like tenor, registered as the Holder (upon payment by the Holder of any applicable transfer taxes) may request, representing in the aggregate the remaining unpaid Principal Amount of this Note. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted Principal Amount of this Note represented by this Note may be less than the amount stated on the face hereof.
(c) Payment of Taxes. The Borrower shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of Common Stock or other securities or property on conversion of this Note in a name other than that of the Holder (or in street name), and the Borrower shall not be required to issue or deliver any such shares or other securities or property unless and until the person or persons (other than the Holder or the custodian in whose street name such shares are to be held for the Holder’s account) requesting the issuance thereof shall have paid to the Borrower the amount of any such tax or shall have established to the satisfaction of the Borrower that such tax has been paid.
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(d) Delivery of Common Stock Upon Conversion. Upon receipt by the Borrower from the Holder of a facsimile transmission or e-mail (or other reasonable means of communication) of a Notice of Conversion meeting the requirements for conversion as provided in this Section 1.4, the Borrower shall issue and deliver or cause to be issued and delivered to or upon the order of the Holder certificates for the Common Stock issuable upon such conversion within two business days after such receipt (the “Deadline”) (and, solely in the case of conversion of the entire unpaid Principal Amount hereof, surrender of this Note) in accordance with the terms hereof.
(e) Obligation of Borrower to Deliver Common Stock. Upon receipt by the Borrower of a Notice of Conversion, the Holder shall be deemed to be the holder of record of the Common Stock issuable upon such conversion, the outstanding Principal Amount on this Note shall be reduced to reflect such conversion, and, unless the Borrower defaults on its obligations under this Article I, all rights with respect to the portion of this Note being so converted shall forthwith terminate except the right to receive the Common Stock or other securities, cash or other assets, as herein provided, on such conversion. If the Holder shall have given a Notice of Conversion as provided herein, the Borrower’s obligation to issue and deliver the certificates for Common Stock shall be absolute and unconditional, irrespective of the absence of any action by the Holder to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any person or any action to enforce the same, any failure or delay in the enforcement of any other obligation of the Borrower to the holder of record, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder of any obligation to the Borrower, and irrespective of any other circumstance which might otherwise limit such obligation of the Borrower to the Holder in connection with such conversion. The Conversion Date specified in the Notice of Conversion shall be the Conversion Date so long as the Notice of Conversion is received by the Borrower before 11:00 a.m., New York, New York time, on such date.
(f) Delivery of Common Stock by Electronic Transfer. In lieu of delivering physical certificates representing the Common Stock issuable upon conversion, provided the Borrower is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer (“FAST”) program, upon request of the Holder and its compliance with the provisions contained in Sections 1.2 and 1.3 and in this Section 1.4, the Borrower shall use its commercially reasonable efforts to cause its transfer agent to electronically transmit the Common Stock issuable upon conversion to the Holder by crediting the account of Holder’s Prime Broker with DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system.
(g) Failure to Deliver Common Stock Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, the parties agree that if delivery of the Common Stock issuable upon conversion of this Note is not delivered by the Deadline the Borrower shall pay to the Holder $3,000 per business day for each business day beyond the Deadline that the Borrower fails to deliver such Common Stock (unless such failure results from war, acts of terrorism, an epidemic, or natural disaster) (“Conversion Default Payments”). Such amount shall be paid to Holder in cash by the fifth day of the month following the month in which it has accrued or, at the option of the Holder (by written notice to the Borrower by the first day of the month following the month in which it has accrued), shall be added to the Principal Amount of this Note on the fifth day of the month following the month in which it has accrued, in which event such additional Principal Amount shall be convertible into Common Stock in accordance with the terms of this Note. The Borrower agrees that the right to convert is a valuable right to the Holder. The damages resulting from a failure, attempt to frustrate, and/or interference with such conversion right are difficult if not impossible to quantify. Accordingly, the parties acknowledge that the liquidated damages provision contained in this Section 1.4(g) are justified.
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1.5 Concerning the Shares. The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective registration statement under the Securities Act of 1933 (the “Securities Act”), or (ii) the Borrower or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Securities Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 1.5 and who is an “accredited investor” (as defined in Rule 501(a) of the Securities Act). Except as otherwise provided (and subject to the removal provisions set forth below), until such time as the shares of Common Stock issuable upon conversion of this Note have been registered under the Securities Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for shares of Common Stock issuable upon conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.”
The legend set forth above shall be removed and the Borrower shall issue to the Holder a new certificate therefore free of any transfer legend if (i) the Borrower or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Stock may be made without registration under the Securities Act, which opinion shall be accepted by the Borrower so that the sale or transfer is effected or (ii) in the case of the Common Stock issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Securities Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold.
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1.6 Status as Shareholder. Upon submission of a Notice of Conversion by a Holder, (i) the shares covered thereby (other than the shares, if any, which cannot be issued because their issuance would exceed such Holder’s allocated portion of the Reserved Amount or non-waived Maximum Share Amount) shall be deemed converted into shares of Common Stock and (ii) the Holder’s rights as a Holder of such converted portion of this Note shall cease and terminate, excepting only the right to receive certificates for such shares of Common Stock and to any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Borrower to comply with the terms of this Note. Notwithstanding the foregoing, if a Holder has not received certificates or transmission of such shares pursuant to Section 1.4(f) for all shares of Common Stock prior to the tenth (10th) business day after the expiration of the Deadline with respect to a conversion of any portion of this Note for any reason, then (unless the Holder otherwise elects to retain its status as a holder of Common Stock by so notifying the Borrower) the Holder shall regain the rights of a Holder of this Note with respect to such unconverted portions of this Note and the Borrower shall, as soon as practicable, return such unconverted Note to the Holder or, if this Note has not been surrendered, adjust its records to reflect that such portion of this Note has not been converted. In all cases, the Holder shall retain all of its rights and remedies (including, without limitation, (i) the right to receive Conversion Default Payments pursuant to Section 1.4(g) to the extent required thereby for such conversion default and any subsequent conversion default and (ii) the right to have the Conversion Price with respect to subsequent conversions determined in accordance with Section 1.1) for the Borrower’s failure to convert this Note.
ARTICLE II
PREPAYMENT AND MANDATORY PAYMENT
2.1 Voluntary Prepayment. The Borrower may voluntarily repay all or any portion of the Principal Amount at any time without penalty.
2.2 Mandatory Payment. The Borrower shall prepay the outstanding Principal Amount in an amount equal to 25% of the net proceeds from any equity or debt issuance concurrently with the receipt of such proceeds.
ARTICLE III
EVENTS OF DEFAULT
The occurrence of any of the following shall each constitute an “Event of Default”, with no right to notice or the right to cure except as specifically stated:
3.1 Failure to Pay. The Borrower fails to pay any amount when due on this Note, whether at the Maturity Date, upon acceleration, or otherwise.
3.2 Reserve/Issuance Failures. The Borrower fails to reserve a sufficient amount of shares of Common Stock as required under the terms of the Purchase Agreement, fails to issue shares of Common Stock to the Holder (or announces or threatens in writing that it will not honor its obligation to do so) upon exercise by the Holder of the conversion rights of the Holder in accordance with the terms of any securities of the Borrower held by the Holder, fails to transfer or cause its transfer agent to transfer (issue) (electronically or in certificated form) shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to any securities of the Borrower held by the Holder as and when required by such securities, the Borrower directs its transfer agent not to transfer or delays, impairs, and/or hinders its transfer agent in transferring (or issuing) (electronically or in certificated form) shares of Common Stock to be issued to the Holder upon conversion of or otherwise pursuant to any securities of the Borrower held by the Holder as and when required by such securities, or fails to remove (or directs its transfer agent not to remove or impairs, delays, and/or hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any shares of Common Stock issued to the Holder upon conversion of or otherwise pursuant to any securities of the Borrower held by the Holder as and when required by such securities (or makes any written announcement, statement or threat that it does not intend to honor the obligations described in this paragraph) and any such failure shall continue uncured (or any written announcement, statement or threat not to honor its obligations shall not be rescinded in writing) for two business days after the Holder shall have delivered an applicable notice of conversion or exercise. It is an obligation of the Borrower to remain current in its obligations to its transfer agent. It shall be an event of default of this Note, if a conversion of any securities held by the Holder is delayed, hindered or frustrated due to a balance owed by the Borrower to its transfer agent. If at the option of the Holder, the Holder advances any funds to the Borrower’s transfer agent in order to process a conversion or exercise (excluding for the avoidance of doubt, the conversion price which is the Holder’s obligation to pay), such advanced funds shall be paid by the Borrower to the Holder within five business days, either in cash or as an addition to the balance of this Note, and such choice of payment method is at the discretion of the Borrower.
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3.3 Breach of Covenants. The Borrower breaches any covenant or other term or condition contained in this Note or any other documents entered into between the Borrower and the Holder the breach of which has (or with the passage of time will have) and such breach is not cured within five (5) business days of the date of such breach, if such breach is capable of cure.
3.4 Breach of Representations and Warranties. Any representation or warranty of the Borrower made in this Note or in any agreement, statement or certificate given in writing pursuant hereto or in connection herewith, or in connection with the Purchase Agreement or any Transaction Document, shall be false or misleading in any material respect when made.
3.5 Receiver or Trustee. The Borrower or any Subsidiary of the Borrower shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or such a receiver or trustee shall otherwise be appointed.
3.6 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings, voluntary or involuntary, for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Borrower or any Subsidiary of the Borrower and, in the case of involuntary proceedings, have not been dismissed within 61 days.
3.7 Delisting of Common Stock on the Trading Market. The Borrower shall fail to maintain the listing or quotation of the Common Stock on Nasdaq Capital Market.
3.8 Liquidation. The Borrower commences any dissolution, liquidation, or winding up of Borrower or any substantial portion of its business.
3.9 SEC Reporting Failure. The Borrower shall fail to be or remain current in the filing of all reports and other materials required to be filed by the Borrower pursuant to Section 13(a) or 15(d) of the Exchange Act, including any failure to timely file any such report (after giving effect to any applicable extension period pursuant to Rule 12b-25 under the Exchange Act), or the Borrower shall otherwise cease to be subject to the reporting requirements of the Exchange Act.
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ARTICLE IV
MISCELLANEOUS
4.1 Failure or Indulgence Not Waiver. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privileges. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.
4.2 Notices. All notices, offers, acceptance and any other acts under this Notice (except payment) shall be in writing, and shall be sufficiently given if delivered to the addressees in person, by e-mail, by FedEx or similar receipted next day delivery, as follows:
Ito the Borrower, to:
Aspire Biopharma Holdings, Inc.
23150 Fashion Drive, Ste 232
Estero, FL 33928
Att: Kraig Higginson, Chief Executive Officer |
Aspire Biopharma Holdings, Inc.
23975 Park Sorrento, Suite 205
Calabasas,CA 91302
Email: [email protected]
Attention: Amir Heshmatpour, President |
with a copy to:
Sichenzia Ross Ference Carmel, LLP
1185 Avenue of Americas, 26th Floor
New York, NY 10036
Att: Arthur S. Marcus, Esq.
(which shall not constitute notice) |
Manatt, Phelps & Phillips LLP
695 Town Center Drive, 14th Floor |
| If to Holder: | |
| Email: | |
| Attention: |
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4.3 Amendments. This Note and any provision hereof may only be amended by an instrument in writing signed by the Borrower and the Holder. The term “Note” and all reference thereto, as used throughout this instrument, shall mean this instrument as originally executed, or if later amended or supplemented, then as so amended or supplemented.
4.4 Assignability. This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to be the benefit of the Holder and its successors and assigns. Notwithstanding anything to the contrary herein, the rights, interests or obligations of the Borrower hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Borrower without the prior signed written consent of the Holder, which consent may be withheld at the sole discretion of the Holder (any such assignment or transfer shall be null and void if the Borrower does not obtain the prior signed written consent of the Holder). This Note or any of the severable rights and obligations inuring to the benefit of or to be performed by Holder hereunder may be assigned by Holder to a third party, in whole or in part, without the need to obtain the Borrower’s consent thereto. Each transferee of this Note must be an “accredited investor” (as defined in Rule 501(a) of the Securities Act). Notwithstanding anything in this Note to the contrary, this Note may be pledged as collateral in connection with a bona fide margin account or other lending arrangement.
4.5 Cost of Collection. If default is made in the payment of this Note, the Borrower shall pay the Holder hereof costs of collection, including reasonable attorneys’ fees.
4.6 Governing Law. This Note shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to the principles of conflicts of law of any other jurisdiction.
4.7 Arbitration. Any disputes, claims, or controversies arising out of or relating to this Note, or the transactions, contemplated thereby, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Note to arbitrate, shall be referred to and resolved solely and exclusively by binding arbitration as provided for in the Purchase Agreement. Either party to this Note may, without waiving any remedy under this Note, seek from any federal or state court sitting in the State of Delaware any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal. The costs and expenses of such arbitration shall be paid by and be the sole responsibility of the Borrower, including but not limited to the Holder’s attorneys’ fees, and each arbitrator’s fees. The arbitrators’ decision must set forth a reasoned basis for any award of damages or finding of liability. The arbitrators’ decision and award will be made and delivered as soon as reasonably possible and in any case within sixty days’ following the conclusion of the arbitration hearing and shall be final and binding on the parties and may be entered by any court having jurisdiction thereof.
4.8 JURY TRIAL WAIVER. THE BORROWER AND THE HOLDER HEREBY WAIVE A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THIS NOTE.
4.9 Certain Amounts. Whenever pursuant to this Note the Borrower is required to pay an amount in excess of the outstanding Principal Amount (or the portion thereof required to be paid at that time), the Borrower and the Holder agree that the actual damages to the Holder from the receipt of cash payment on this Note may be difficult to determine and the amount to be so paid by the Borrower represents stipulated damages and not a penalty and is intended to compensate the Holder in part for loss of the opportunity to convert this Note and to earn a return from the sale of shares of Common Stock acquired upon conversion of this Note at a price in excess of the price paid for such shares pursuant to this Note. The Borrower and the Holder hereby agree that such amount of stipulated damages is not plainly disproportionate to the possible loss to the Holder from the receipt of a cash payment without the opportunity to convert this Note into shares of Common Stock.
4.10 Remedies. The Borrower acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Borrower acknowledges that the remedy at law for a breach of its obligations under this Note will be inadequate and agrees, in the event of a breach or threatened breach by the Borrower of the provisions of this Note, that the Holder shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Note and to enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and without any bond or other security being required.
4.11 Usury. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable provision shall automatically be revised to equal the maximum rate of interest or other amount deemed interest permitted under applicable law. The Borrower covenants (to the extent that it may lawfully do so) that it will not seek to claim or take advantage of any law that would prohibit or forgive the Borrower from paying all or a portion of the principal or interest, if any, on this Note.
** signature page to follow **
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IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by its duly authorized officer on the Issue Date.
| ASPIRE BIOPHARMA HOLDINGS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
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EXHIBIT A
SECURED CONVERTIBLE PROMISSORY-NOTE - NOTICE OF CONVERSION
The undersigned hereby elects to convert $_____ amount of this Note (defined below) into that number of shares of Common Stock to be issued pursuant to the conversion of this Note (“Common Stock”) as set forth below, of Aspire Biopharma Holdings, Inc. (the “Borrower”), according to the conditions of the convertible promissory note of the Borrower dated as of August 6, 2026 (the “Note”), as of the date written below. No fee will be charged to the Holder for any conversion, except for transfer taxes, if any.
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| ☐ | The Borrower shall electronically transmit the Common Stock issuable pursuant to this Notice of Conversion to the account of the undersigned or its nominee with DTC through its Deposit Withdrawal Agent Commission system (“DWAC Transfer”). |
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| 12 |
Exhibit 99.1
Aspire Biopharma Completes Acquisition of Dura Driver Control Systems, a Leading Global Automotive Supplier with a 100+ Year History and $200M+ in 2025 Revenue
| ● | Acquisition represents a transformative milestone for Aspire, positioning the Company to rapidly evolve into a diversified, high-revenue enterprise | |
| ● | Adds an established global brand with scale in large and growing markets driven by trends in vehicle and mobility control systems | |
| ● | Augments revenue growth profile and diversifies Aspire’s development and commercial portfolio with new high growth business | |
| ● | Expected to immediately improve path to profitability |
ESTERO, FL / August 10, 2026 / Aspire Biopharma Holdings, Inc. (Nasdaq: ASBP) (“Aspire” or the “Company”), today announced that the Company has completed its previously announced acquisition (the “Acquisition”) of Dura Driver Control Systems (“DCS”), a tier-one supplier specializing in automotive systems that facilitate electronic driver control and the migration toward vehicle electrification, safety, lightweighting, and sustainability. The acquisition is expected to enhance Aspire’s ability to deliver increased revenues, durable earnings and cash flow, driven by a new portfolio of product offerings in the large and growing markets for vehicle and mobility control systems.
Pursuant to the terms of the SPA, Aspire has acquired 100% of the issued and outstanding shares of DCS, and DCS has become a wholly owned subsidiary of the Company. Aspire purchased these shares for approximately $30.0 million in cash.
Aspire also announced that, in connection with the Acquisition of DCS, it entered into a $22.5 million senior secured revolving credit facility (the “New Revolving Facility”). Aspire intends to use the borrowings under the New Revolving Facility and cash on hand, to fund the consideration payable for the Acquisition.
DCS CEO Hans Vorstenbosch will continue as CEO of Aspire’s DCS subsidiary with the existing DCS management team under the leadership of Gregory J. Corona, the Chairman of Lakewood & Company.
“Closing the DCS acquisition is a cash-flow-positive milestone that structurally enhances Aspire’s valuation,” said Kraig Higginson, CEO and Chairperson of the Aspire’s Board. “Absorbing DCS’s FY2025 financial footprint—exceeding $200 million in revenue and $22.3 million in Adjusted EBITDA1 in 2025—immediately elevates us to enterprise scale. This transaction captures immediate, high-volume revenue streams to strengthen our capital flexibility and drive long-term shareholder value.”
Key Strategic & Operational Pillars
● Strong Financial Profile: For the six months ended June 30, 2026 (unaudited) and twelve months ended December 31, 2025 (unaudited), DCS generated (a) revenue of approximately $103.9 million and $209.5 million, respectively, (b) Adjusted EBITDA1 of approximately $10.5 million and $22.3 million, respectively.
● Global Manufacturing Scale: Operates 11 global manufacturing facilities strategically located across North America, Europe, and Asia.
● Blue Chip Customer Base Diversified portfolio of more than 50 customers, highlighted by an average relationship longevity of 28 years with its top 10 OEM clients, supporting more than 150 vehicle platforms and 250 high-volume, global vehicle models.
● Extensive Intellectual Property: DCS maintains a proprietary portfolio of over 275 distinct parts and more than 310 patents.
● Seasoned Management: The existing DCS leadership team will be bolstered by automotive operating and investment professionals from Lakewood & Company, bringing more than 200 years of collective automotive industry, OEM, tier-one supplier, and industrial sector expertise.
1Non-GAAP Financial Measure Notice: DCS defines Adjusted EBITDA as earnings before interest expense, income tax, depreciation, and amortization, inclusive of specifically identified adjustments. The Company believes Adjusted EBITDA provides useful supplemental information to investors regarding DCS’s operational and financial performance. Adjusted EBITDA as presented herein may not be comparable to similarly titled measures reported by other companies.
Advisor
RBW Capital Partners LLC is acting as exclusive financial advisor to the Company in connection with the acquisition. Any securities or brokerage services are offered through Dawson James Securities, Inc.
About Dura Driver Control Systems
DCS is a leading designer and manufacturer of highly engineered automotive and industrial systems that facilitate electronic driver control and support migration toward vehicle electrification, safety, lightweighting, and sustainability. DCS maintains a strong powertrain agnostic product portfolio that includes mechatronic actuators, human machine interfaces, industrial cables, and cable control systems backed by over 310 patents. The Company operates 11 manufacturing facilities globally and serves as a tier one automotive supplier to major OEMs and other industrial firms.
About Aspire Biopharma Holdings, Inc.
Aspire Biopharma has developed a patent-pending sublingual delivery technology that can deliver drugs to the body rapidly and precisely. This technology offers the potential to improve effectiveness and reduce side effects by going directly to the bloodstream and avoiding the gastrointestinal tract. Aspire Biopharma’s delivery technology can be applied to many different active pharmaceutical ingredients (APIs) and other bioactive substances, spanning both small and large molecule therapeutics, nutraceuticals and supplements.
For more information, please visit www.aspirebiolabs.com
Aspire Biopharma Holdings, Inc.
Contact
PCG Advisory
Kevin McGrath
+1-646-418-7002
Safe Harbor Statement
This press release contains “forward-looking statements” within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, and Section 27A of the Securities Act of 1933, as amended, which are intended to be covered by the “safe harbor” provisions created by those laws. Aspire’s forward-looking statements include, but are not limited to, statements regarding our or our management team’s expectations, hopes, beliefs, intentions or strategies regarding our future operations. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “contemplate,” “continue,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “will,” “would,” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements represent our views as of the date of this press release and involve a number of judgments, risks and uncertainties. We anticipate that subsequent events and developments will cause our views to change. We undertake no obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws. Accordingly, forward-looking statements should not be relied upon as representing our views as of any subsequent date. As a result of a number of known and unknown risks and uncertainties, our actual results or performance may be materially different from those expressed or implied by these forward-looking statements. Some factors that could cause actual results to differ include general market conditions, whether clinical trials demonstrate the efficacy and safety of our drug candidates to the satisfaction of regulatory authorities, or do not otherwise produce positive results which may cause us to incur additional costs or experience delays in completing, or ultimately be unable to complete the development and commercialization of our drug candidates; the clinical results for our drug candidates, which may not support further development or marketing approval; actions of regulatory agencies, which may affect the initiation, timing and progress of clinical trials and marketing approval; our ability to achieve commercial success for our drug candidates, if approved, our limited operating history and our ability to obtain additional funding for operations and to complete the development and commercialization of our drug candidates, and other risks and uncertainties set forth in “Risk Factors” in our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q. Additional risks specific to the proposed acquisition of DCS include, without limitation: the risk that due diligence, including the audit of DCS’s financial statements under U.S. GAAP, may reveal information that adversely affects the terms or viability of the transaction; risks related to DCS’s business, including its dependence on key automotive OEM customers, exposure to cyclical conditions in the global automotive industry, potential liabilities associated with DCS’s operations and intellectual property, the ability to successfully integrate DCS’s operations following closing, and the risk that anticipated financial benefits from the acquisition may not be realized, including the risk that the business operations and strategies of DCS and Aspire may diverge. In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this press release, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain, and you are cautioned not to rely unduly upon these statements. All information in this press release is as of the date of this press release. The information contained in any website referenced herein is not, and shall not be deemed to be, part of or incorporated into this press release.
SOURCE: Aspire Biopharma Holdings, Inc.