8-K
Driveitaway Holdings, Inc. (DWAY)
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): February10, 2023
DRIVEITAWAY HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 000-52883 | 20-4456503 |
|---|---|---|
| (State or other jurisdiction<br><br>of incorporation or organization) | (Commission<br><br>File Number) | (IRS Employer<br><br>Identification No.) |
3401 Market Street, Suite 200/201Philadelphia, PA 19104
(Address of principal executive office) (Zip Code)
(856) 577-2763
(Registrants’ telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title<br> of each class | Trading<br> Symbol(s) | Name<br> of each exchange on which registered |
|---|---|---|
| None | None | None |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter)
Emerging Growth Company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 Entry into a Material DefinitiveAgreement.
On February 24, 2022, DriveItAway Holdings, Inc. (f/k/a Creative Learning Corp.) (the “Company”) entered into a Securities Purchase Agreement (the “SPA”) with AJB Capital Investments, LLC (“AJB”), and issued a Promissory Note in the principal amount of $750,000 (the “AJB Note”) to AJB in a private transaction for a purchase price of $675,000 (after giving effect to a 10% original issue discount). In connection with the sale of the AJB Note, the Company also paid certain fees and due diligence costs of AJB and brokerage fees to J.H. Darbie & Co., a registered broker-dealer. After payment of the fees and costs, the net proceeds to the Company were $641,250, which will be used for working capital and other general corporate purposes.
The maturity date of the AJB Note is August 24, 2022, but it may be extended for six months upon written notice to AJB by the Company. The AJB Note bears interest at 10% per year, and principal and accrued interest is due on the maturity date. The Company may prepay the AJB Note at any time without penalty. Under the terms of the AJB Note, the Company may not sell a significant portion of its assets without the approval of AJB, may not issue additional debt that is not subordinate to AJB, must comply with the Company’s reporting requirements under the Securities Exchange Act of 1934, and must maintain the listing of the Company’s common stock on the OTC Market or other exchange, among other restrictions and requirements. The Company’s failure to make required payments under the AJB Note or to comply with any of these covenants, among other matters, would constitute an event of default. Upon an event of default under the SPA or AJB Note, the AJB Note will bear interest at 18%, AJB may immediately accelerate the AJB Note due date, AJB may convert the amount outstanding under the AJB Note into shares of Company common stock at a discount to the market price of the stock, and AJB will be entitled to its costs of collection, among other penalties and remedies.
The Company provided various representations, warranties, and covenants to AJB in the SPA. The Company’s breach of any representation or warranty, or failure to comply with the covenants would constitute an event of default. Also pursuant to the SPA, the Company paid AJB a commitment fee of 4,000,000 unregistered shares of the Company’s common stock (the “Commitment Fee Shares”). If, after the sixth month anniversary of closing and before the thirty-sixth month anniversary of closing, AJB has been unable to sell the Commitment Fee Shares for $400,000, then the Company may be required to issue additional shares or pay cash in the amount of the shortfall. However, if the Company pays the AJB Note off before August 24, 2022, then the Company may redeem 2,000,000 of the Commitment Fee Shares for one dollar. Pursuant to the SPA, the Company also issued to AJB a Common Stock Purchase Warrant (the “Warrant”) to purchase 1,000,000 shares of the Company’s common stock for $0.30 per share. The Warrant expires on February 24, 2027. The Warrant also includes various covenants of the Company for the benefit of the Warrant holder and includes a beneficial ownership limitation on the holder that, in certain circumstances, may serve to restrict the holder’s right to exercise the Warrant.
The above information was disclosed previously on a Current Report on Form 8-K filed by the Company on March 2, 2022.
On August 24, 2022, pursuant to the terms in the AJB Note, the Company provided notice to AJB to extend the maturity date on the AJB Note to February 24, 2023.
On October 31, 2022, the Company and ABJ entered into a First Amendment to the SPA (the “Amended SPA”), whereby ABJ agreed to waive certain events of default under the SPA and AJB Note, specifically the failure of the Company to timely file a quarterly report on Form 10-Q for the period ended March 31, 2022, and for the temporary loss of the “bid” price of the Company’s common stock. In consideration for the above, the Company agreed to issue ABJ an additional 1,000,000 Commitment Fee Shares.
The above information was disclosed previously on a Current Report on Form 8-K filed by the Company on November 4, 2022.
On February 10, 2023, the Company and AJB entered into a First Amendment to the Promissory Note (the “Amended Note”), pursuant to which the (a) principal amount of the Note will be increased by $85,000 and such amount shall be disbursed to the Company for exclusive use to pay certain third party vendors of the Company as provided in the Amended Note; and (b) to extend the Maturity Date to May 24, 2023.
In addition, the Company and AJB entered into the Second Amendment to the Securities Purchase Agreement (the “Second Amended SPA”) reflecting certain additional amendments in contemplation of the Note Amendment, and the Amended and Restated Common Stock Purchase Warrant (the “Amended Warrant”), as defined below.
As consideration for the Amended Note and Second Amended SPA, the Company issued AJB the Amended Warrant, pursuant to which the number of shares issuable under the Amended Warrant will be increased to 2,000,000 and the exercise price redefined to be $0.05. The Amended Warrant also includes various covenants of the Company for the benefit of the warrant holder and includes a beneficial ownership limitation on the holder that, in certain circumstances, may serve to restrict the holder’s right to exercise the Amended Warrant. In addition, the Amended Warrant also contains certain conditions in which the exercise price may be adjusted, as well as registration rights by AJB of the shares underlying the warrants.
All other terms, conditions, and provisions of the Note, the SPA and the Amended SPA shall remain in full force and effect, except as expressly provided in the Amended Note and the Second Amended SPA.
In addition, the Company and AJB entered into a side letter agreement, pursuant to which the Company agreed that AJB shall (i) withhold an aggregate of $3,500 from the proceeds under the Amended Note to reimburse AJB for legal and due diligence expenses, and (ii) disburse the remainder of the proceeds directly to certain service providers of the Company pursuant to the Company’s instructions and as provided in the Amended Note and the Second Amended SPA, rather than directly to the Company.
The offer and sale of the , Amended Note and the Amended Warrant was made in a private transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), in reliance on exemptions afforded by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D promulgated thereunder.
The foregoing description of the Second Amended SPA, Side Letter Agreement, Amended Note and the Amended Warrant do not purport to be complete and are qualified in their entirety by reference to the full text of the Second Amended SPA, Side Letter Agreement, Amended Note and the Amended Warrant, which are filed as Exhibits 10.1, 10.2, 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Item 2.03 Creation ofa Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated herein by reference.
Item 3.02 UnregisteredSales of Equity Securities.
The information set forth under Items 1.01 is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| DRIVEITAWAY HOLDINGS, INC. | ||
|---|---|---|
| Dated: February 16, 2023 | By: | /s/ John Possumato |
| Name: | John Possumato | |
| Title: | Chief Executive Officer |
EXHIBIT 4.1
FIRSTAMENDMENT TOPROMISSORY NOTE
This FIRST AMENDMENTTO PROMISSORY NOTE (this “Amendment”), dated as of February 10, 2023 (the “Effective Date”), by and between DRIVEITAWAY HOLDINGS, INC. (f/k/a Creative Learning Corporation), a Delaware corporation, with headquarters located at 3401 Market Street, Suite 200/201, Philadelphia, PA 19104 (the “Company”), and AJB CAPITAL INVESTMENTS, LLC, a Delaware limited liability company, with its address at 4700 Sheridan Street, Suite J, Hollywood, FL 33021 (the “Buyer”).
WHEREAS:
| A. | The Company and the Buyer are parties to that certain Promissory Note of the Company issued in<br>favor of the Buyer, dated February 24, 2022, in the original principal amount of US$750,000.00 (the “Note”). |
|---|---|
| B. | The Buyer has agreed to increase the principal amount of the Note by $85,000 (the “Additional<br>Principal Amount”) and to extend to the Maturity Date to May 24, 2023. |
| --- | --- |
| C. | Section 4.3 of the Note provides that the provisions of the Note may be amended if such amendment<br>is in writing and signed by the Buyer and the Company. |
| --- | --- |
| D. | The Company and the Buyer desire to amend the Note in accordance with the terms of this Amendment. |
| --- | --- |
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants, representations, warranties, conditions, and agreements hereinafter expressed, the Company and the Buyer hereby agree as follows:
| 1. | Defined Terms.<br>All capitalized terms used in this Amendment and not otherwise defined shall have the meanings given to such terms in the Note; provided,<br>that: |
|---|---|
| a. | the term “Interest Rate” shall be deemed to mean twelve percent (12%) per annum; |
| --- | --- |
| b. | the term “Maturity Date” shall be deemed to mean May 24, 2023; and |
| --- | --- |
| c. | the term “Principal” shall be deemed to mean US$835,000.00. |
| --- | --- |
| 2. Amendment | to<br> Preamble. |
| --- | --- |
| a. | The following provision in the Preamble of the Note is hereby deleted in its entirety: “The<br>Maturity Date may be extended by the Borrower by notice to the Holder for up to six (6) months following the date of the original<br>Maturity Date hereunder. In the event that the Maturity Date is extended, the interest rate shall equal twelve percent (12%) per<br>annum for any period following the original Maturity Date, payable monthly.” |
| --- | --- |
| b. | For the avoidance of doubt, the Additional Principal Amount carries no original issue discount. |
| --- | --- |
| 3. | Use of Funds.<br>Anything in the Transaction Documents to the contrary notwithstanding, the Additional Principal Amount may only be used for payments<br>to the Company’s auditor, the Company’s internal accounting service, the OTC markets, and the Transfer Agent as an exit fee. |
| --- | --- |
- Miscellaneous.
| a. | No Further Amendment.<br>Except as expressly amended hereby, the Note is in all respects ratified and confirmed and all the terms, conditions, and provisions<br>thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment<br>to any other term or condition of the Note or any other document referred to therein. This Amendment shall be deemed to be in full force<br>and effect from and after the execution of this Amendment by the Company and the Buyer, and the Company and the Buyer shall be bound<br>hereby. |
|---|---|
| b. | Counterparts. This Amendment<br>may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the<br>same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. This Amendment,<br>once executed by a party, may be delivered to the other party hereto by facsimile transmission of a copy of this Amendment bearing the<br>signature of the party so delivering this Amendment. |
| c. | Construction; Headings.<br>This Amendment shall be deemed to be jointly drafted by the Company and the Buyer and shall not be construed against any person as<br>the drafter hereof. The headings of this Amendment are for convenience of reference only and shall not form part of, or affect the interpretation<br>of, this Amendment. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual<br>intent, and no rules of strict construction will be applied against any party. |
| d. | Incorporation of Certain<br>Provisions by Reference. The following provisions of the Note are hereby incorporated into this Amendment by reference mutatismutandis: Section 4.6 (Governing Law); and Section 4.12 (Severability). |
[signature page follows]
| 2 |
| --- |
IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Amendment to be duly executed as of the date first above written.
DRIVEITAWAY HOLDINGS, INC.
| By*:* | /s/ John Possumato |
|---|---|
| Name: | John Possumato |
| Title: | Chief Executive Officer |
AJB CAPITAL INVESTMENTS, LLC
| By*:* | /s/ Ari Blaine |
|---|---|
| Name: | Ari Blaine |
| Title: | Partner |
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EXHIBIT 4.2
NEITHER THIS SECURITY NOR THE SECURITIES AS TO WHICH THIS SECURITY MAY BE EXERCISED HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT
DRIVEITAWAY HOLDINGS, INC.
Warrant Shares: 2,000,000
Date of Issuance: February 24, 2022 (“Issuance Date”)
As Amended and Restated: February 10, 2023
This AMENDED AND RESTATED COMMON STOCK PURCHASE WARRANT (the “Warrant”) amends, restates, and replaces in its entirety that certain Common Stock Purchase Warrant dated February 24, 2022 (the “Original Warrant”) to purchase 1,000,000 shares of Common Stock (as defined below) of Driveitaway Holdings, Inc. (f/k/a Creative Learning Corporation), a Delaware corporation (the “Company”). The Company and AJB Capital Investments, LLC, a Delaware limited liability company (including any permitted and registered assigns, the “Holder”), have agreed to amend and restate the Original Warrant pursuant to Section 9 of the Original Warrant, as set forth herein.
This Warrant certifies that, for value received (in connection with the issuance of the $835,000.00 12% promissory note to the Holder dated as of the Issuance Date (as amended, the “Note”), is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after the Issuance Date, to purchase the Company up to 2,000,000 shares of Common Stock (the “Warrant Shares”) (whereby such number may be adjusted from time to time pursuant to the terms and conditions of this Warrant) at the Exercise Price per share then in effect. This Warrant is issued by the Company as of the Issuance Date in connection with that certain securities purchase agreement dated February 24, 2022, by and among the Company and the Holder (as amended, the “Purchase Agreement”).
Capitalized terms used in this Warrant shall have the meanings set forth in the Purchase Agreement unless otherwise defined in the body of this Warrant or in Section 12 below. For purposes of this Warrant, the term “Exercise Price” shall mean $0.05, subject to adjustment as provided herein, and the term “Exercise Period” shall mean the period commencing on the Issuance Date and ending on 5:00 p.m. eastern standard time on the five-year anniversary thereof.
1. EXERCISE OF WARRANT.
(a) Mechanicsof Exercise. Subject to the terms and conditions hereof, the rights represented by this Warrant may be exercised in whole or in part at any time or times during the Exercise Period by delivery of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”), of the Holder’s election to exercise this Warrant. The Holder shall not be required to deliver the original Warrant in order to effect an exercise hereunder. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. On or before the second Trading Day (the “Warrant Share Delivery Date”) following the date on which the Holder sent the Exercise Notice to the Company or the Company’s transfer agent, and upon receipt by the Company of payment to the Company of an amount equal to the applicable Exercise Price multiplied by the number of Warrant Shares as to which all or a portion of this Warrant is being exercised (the “Aggregate Exercise Price” and together with the Exercise Notice, the “Exercise Delivery Documents”) in cash or by wire transfer of immediately available funds, the Company shall (or direct its transfer agent to) issue and dispatch by overnight courier to the address as specified in the Exercise Notice, a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder is entitled pursuant to such exercise (or deliver such shares of Common Stock in electronic format if requested by the Holder). Upon delivery of the Exercise Delivery Documents, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the certificates evidencing such Warrant Shares. If this Warrant is submitted in connection with any exercise and the number of Warrant Shares represented by this Warrant is greater than the number of Warrant Shares being acquired upon an exercise, then the Company shall as soon as practicable and in no event later than three Business Days after any exercise and at its own expense, issue a new Warrant (in accordance with Section 6) representing the right to purchase the number of Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which this Warrant is exercised.
If the Company fails to cause its transfer agent to transmit to the Holder the respective shares of Common Stock by the respective Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise in Holder’s sole discretion, and such failure shall be deemed an event of default under the Note.
(b) NoFractional Shares. No fractional shares shall be issued upon the exercise of this Warrant as a consequence of any adjustment pursuant hereto. All Warrant Shares (including fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining whether the exercise would result in the issuance of any fractional share. If, after aggregation, the exercise would result in the issuance of a fractional share, the number of shares issuable shall be rounded up, as the case may be, to the nearest whole share.
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(c) Holder’sExercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, to the extent that after giving effect to issuance of Warrant Shares upon exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other persons acting as a group together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation, as defined below. For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of shares of Common Stock issuable upon exercise of this Warrant pursuant to a pending Exercise Notice with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, non-exercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or non-converted portion of any other securities of the Company (including without limitation any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this paragraph (c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this paragraph applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any affiliates) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
For purposes of this paragraph, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or its transfer agent setting forth the number of shares of Common Stock outstanding. Upon the request of a Holder, the Company shall within two Trading Days confirm to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The limitations contained in this paragraph shall apply to a successor Holder of this Warrant.
(d) Registrationof Common Stock. The shares issuable upon exercise of this Warrant shall be included in the next succeeding registration statement filed by the Company with the securities exchange commission after the Issuance Date, other than a registration statement filed on Form S-8 or Form S-4. If no such registration statement is filed or if the Company fails to include such shares in such registration statement, then no later than the date that is six months from the Issuance Date the Company shall file a registration statement with the Securities and Exchange Commission including all shares issuable upon exercise of this Warrant, and cause it to be declared effective.
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(e) Conversionto Cashless Exercise. In the event the Company (i) fails to timely file a registration statement for the shares issuable upon exercise of this Warrant as required by the preceding paragraph, or (ii) fails to repay all amounts payable by the Company under the Note by the Maturity Date, in each case notwithstanding anything in Section 1(a) of this Warrant to the contrary, this Warrant will be deemed to permit cashless exercise, such that Holder may pay the Aggregate Exercise Price by instructing the Company to issue Warrant Shares then issuable upon exercise of all or any part of this Warrant on a net basis such that, without payment of any cash consideration or other immediately available funds, the Holder shall surrender this Warrant in exchange for the number of Warrant Shares as is computed using the following formula:
Where:
X = the number of Warrant Shares to be issued to the Holder.
Y = the total number of Warrant Shares for which the Holder has elected to exercise this Warrant.
A = the Fair Market Value of one Warrant Share as of the date of the applicable Exercise Notice.
B = the Exercise Price in effect under this Warrant as of the date of the applicable Exercise Notice.
X = Y(A - B) ÷ A
2. ADJUSTMENTS. The Exercise Price and the number of Warrant Shares shall be adjusted from time to time as follows:
(a) Distributionof Assets. If the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including without limitation any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case:
(i) any Exercise Price in effect immediately prior to the close of business on the record date fixed for the determination of holders of shares of Common Stock entitled to receive the Distribution shall be reduced, effective as of the close of business on such record date, to a price determined by multiplying such Exercise Price by a fraction (i) the numerator of which shall be the Closing Sale Price of the shares of Common Stock on the Trading Day immediately preceding such record date minus the value of the Distribution (as determined in good faith by the Company’s Board of Directors) applicable to one share of Common Stock, and (ii) the denominator of which shall be the Closing Sale Price of the shares of Common Stock on the Trading Day immediately preceding such record date; and
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(ii) the number of Warrant Shares shall be increased to a number of shares equal to the number of shares of Common Stock obtainable immediately prior to the close of business on the record date fixed for the determination of holders of shares of Common Stock entitled to receive the Distribution multiplied by the reciprocal of the fraction set forth in the immediately preceding clause (i); provided, however, that in the event that the Distribution is of shares of common stock of a company (other than the Company) whose common stock is traded on a national securities exchange or a national automated quotation system (“Other Shares of Common Stock”), then the Holder may elect to receive a warrant to purchase Other Shares of Common Stock in lieu of an increase in the number of Warrant Shares, the terms of which shall be identical to those of this Warrant, except that such warrant shall be exercisable into the number of shares of Other Shares of Common Stock that would have been payable to the Holder pursuant to the Distribution had the Holder exercised this Warrant immediately prior to such record date and with an aggregate exercise price equal to the product of the amount by which the exercise price of this Warrant was decreased with respect to the Distribution pursuant to the terms of the immediately preceding clause (i) and the number of Warrant Shares calculated in accordance with the first part of this clause (ii).
(b) Anti-DilutionAdjustments to Exercise Price. If and whenever, at any time while this Warrant is outstanding, the Company issues or sells, or in accordance with this Section 2 is deemed to have issued or sold, any warrant or option to purchase Common Stock and/or Common Stock Equivalents (including shares of Common Stock owned or held by or for the account of the Company), but excluding any securities issued or sold or deemed to have been issued or sold solely in connection with an Exempt Issuance, with a purchase price per share (the “New Issuance Price”) less than the Exercise Price in effect immediately prior to such issuance or sale or deemed issuance or sale, then immediately after such issuance or sale or deemed issuance or sale, the Exercise Price then in effect shall be reduced to an amount equal to the New Issuance Price (subject to adjustment as provided herein).
Notwithstanding the forgoing Section 2(b), in the event that the Company successfully lists shares of its common stock on a senior national securities exchange, including but not limited to the Nasdaq Stock Market and/or New York Stock Exchange, the exercise price of this Warrant shall no longer be subject to the anti-dilution adjustment provisions provided in Section 2(b) of this Warrant.
(c) Subdivisionor Combination of Common Stock. If the Company at any time on or after the Issuance Date subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Exercise Price in effect immediately prior to such subdivision will be proportionately reduced and the number of Warrant Shares will be proportionately increased. If the Company at any time on or after the Issuance Date combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Exercise Price in effect immediately prior to such combination will be proportionately increased and the number of Warrant Shares will be proportionately decreased; provided, however, that if the Company fails to repay all amounts payable by the Company under the Note by the Maturity Date, no adjustments to the Exercise Price or number of Warrant Shares will be made pursuant to the foregoing. Any adjustment under this Section 2(c) shall become effective at the close of business on the date the subdivision or combination becomes effective. Each such adjustment of the Exercise Price shall be calculated to the nearest one-hundredth of a cent. Such adjustment shall be made successively whenever any event covered by this Section 2(c) shall occur.
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3. FUNDAMENTAL TRANSACTIONS. If, at any time while this Warrant is outstanding, (i) the Company effects any merger of the Company with or into another entity and the Company is not the surviving entity (such surviving entity, the “Successor Entity”), (ii) the Company effects any sale of all or substantially all of its assets in one or a series of related transactions, (iii) any tender offer or exchange offer (whether by the Company or by another individual or entity, and approved by the Company) is completed pursuant to which holders of Common Stock are permitted to tender or exchange their shares of Common Stock for other securities, cash or property and the holders of at least 50% of the Common Stock accept such offer, or (iv) the Company effects any reclassification of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property (other than as a result of a subdivision or combination of shares of Common Stock governed by Section 2(c) herein) (in any such case, a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive the number of shares of Common Stock of the Successor Entity or of the Company and any additional consideration (the “Alternate Consideration”) receivable upon or as a result of such reorganization, reclassification, merger, consolidation or disposition of assets by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such event (disregarding any limitation on exercise contained herein solely for the purpose of such determination). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any Successor Entity in such Fundamental Transaction shall issue to the Holder a new warrant consistent with the foregoing provisions and evidencing the Holder’s right to exercise such warrant into Alternate Consideration.
4. NON-CIRCUMVENTION. The Company covenants and agrees that it will not, by amendment of its certificate of incorporation, bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder. Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any shares of Common Stock receivable upon the exercise of this Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon the exercise of this Warrant, and (iii) shall, for so long as this Warrant is outstanding, have authorized and reserved, free from preemptive rights, five times the number of shares of Common Stock that is actually issuable upon full exercise of the Warrant (based on the Exercise Price in effect from time to time, and without regard to any limitations on exercise).
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5. WARRANT HOLDER NOT DEEMED A STOCKHOLDER. Except as otherwise specifically provided herein, this Warrant, in and of itself, shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a stockholder of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.
6. REISSUANCE.
(a) Lost,Stolen or Mutilated Warrant. If this Warrant is lost, stolen, mutilated or destroyed, the Company will, on such terms as to indemnity or otherwise as it may reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination and tenor as this Warrant so lost, stolen, mutilated or destroyed.
(b) Issuanceof New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant shall be of like tenor with this Warrant, and shall have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date.
7. TRANSFER.
(a) AssignmentGenerally. This Warrant shall be binding upon the Company 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 Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company 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 Company does not obtain the prior signed written consent of the Holder). This Warrant 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 Company’s consent thereto.
(b) NoTransfer Except on Compliance with the Law. The Holder of this Warrant and any transferee hereof or of the Common Stock with respect to which this Warrant may be exercisable, by his or her acceptance hereof, hereby understands and agrees that this Warrant and the Common Stock with respect to which this Warrant may be exercisable have not been registered under the Securities Act, and may not be sold, pledged, hypothecated, donated, or otherwise transferred (whether or not for consideration) without an effective registration statement under the Act or an available exemption from such registration. It shall be a condition to the transfer of this Warrant that any transferee thereof deliver to the Company its written agreement to accept and be bound by all of the terms and conditions of this Warrant. The foregoing notwithstanding, the Company acknowledges its obligations to register the Common Stock which is issuable upon exercise of this Warrant pursuant to Section 1(d) hereof.
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(c) Legendon Shares issued upon Exercise. Except to the extent the resale of the shares of Common Stock issuable upon exercise hereof are registered for resale, or may be sold to the public pursuant to Rule 144 under the Securities Act, the certificates of the Company that will evidence the shares of Common Stock with respect to which this Warrant may be exercisable will be imprinted with a conspicuous legend in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND/OR SUBMISSION TO THE COMPANY OF SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY TO COUNSEL TO THE COMPANY, IN EACH SUCH CASE, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT.”
8. NOTICES. Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance with the notice provisions contained in the Purchase Agreement. The Company shall provide the Holder with prompt written notice (i) immediately upon any adjustment of the Exercise Price, setting forth in reasonable detail, the calculation of such adjustment and (ii) at least ten days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the shares of Common Stock, (B) with respect to any grants, issuances or sales of any stock or other securities directly or indirectly convertible into or exercisable or exchangeable for shares of Common Stock or other property, pro rata to the holders of shares of Common Stock, or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder.
9. AMENDMENT AND WAIVER. The terms of this Warrant may be amended or waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the Holder.
10. GOVERNING LAW AND VENUE. This Warrant shall be governed by and construed in accordance with the laws of the State of Wyoming without regard to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Warrant shall be brought only in the state courts located in the State of New York or in the federal courts located in the State of New York. The parties to this Warrant hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. THE BORROWER HEREBYIRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER ORIN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs. In the event that any provision of this Warrant or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law,
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then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other Transaction Document by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
11. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of and agreement to all of the terms and conditions contained herein.
12. CERTAIN DEFINITIONS. For purposes of this Warrant, the following terms shall have the following meanings:
(a) “Nasdaq” means www.Nasdaq.com.
(b) “Closing Sale Price” means, for any security as of any date, (i) the last closing trade price for such security on the Principal Market, as reported by Nasdaq, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing trade price, then the last trade price of such security prior to 4:00 p.m., New York time, as reported by Nasdaq, or (ii) if the foregoing does not apply, the last trade price of such security in the over-the-counter market for such security as reported by Nasdaq, or (iii) if no last trade price is reported for such security by Nasdaq, the average of the bid and ask prices of any market makers for such security as reported by the OTC Markets. If the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Sale Price of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during the applicable calculation period.
(c) “Common Stock” means the Company’s common stock, and any other class of securities into which such securities may hereafter be reclassified or changed.
(d) “Common Stock Equivalents” means any securities of the Company that would entitle the holder thereof to acquire at any time Common Stock, including without limitation any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
9
(e) “Exempt Issuance” means (i) issuances of securities in a firm commitment underwritten public offering (excluding a continuous offering pursuant to Rule 415 under the 1933 Act), (ii) issuances to employees, officers, directors, contractors, consultants or other advisors approved by the Board, whether pursuant to a plan or on a case-by-case basis, (iii) issuances to strategic partners or other parties in connection with a commercial relationship, or providing the Company with equipment leases, real property leases or similar transactions approved by the Board, (iv) issuances of securities as consideration for a merger, consolidation or purchase of assets, or in connection with any strategic partnership or joint venture (the primary purpose of which is not to raise equity capital), or in connection with the disposition or acquisition of a business, product or license by the Company, or (v) shares of Common Stock issued pursuant to the Company’s current private placement offering of 7,000,000 Units for $0.20 per Unit, each of which consists of one share of common stock and one warrant to purchase one share of common stock for $0.40 per share.
(f) “Principal Market” means the primary exchange or quotation system on which the Common Stock is then traded.
(g) “Trading Day” means (i) any day on which the Common Stock is listed or quoted and traded on its Principal Market, (ii) if the Common Stock is not then listed or quoted and traded on any national securities exchange, then a day on which trading occurs on any over-the-counter markets, or (iii) if trading does not occur on the over-the-counter markets, any Business Day.
* * * * * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed effective as of the Issuance Date set forth above.
| DRIVEITAWAY HOLDINGS, INC. |
|---|
| Name: John Possumato |
| Title: Chief Executive Officer |
Agreed and Acknowledged:
| AJB CAPITAL INVESTMENTS, LLC | |
|---|---|
| By: | |
| Name: | Ari Blaine |
| Title: | Partner |
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EXHIBIT A
EXERCISE NOTICE
(To be executed by the registered holder to exercise this Common Stock Purchase Warrant)
THE UNDERSIGNED holder hereby exercises the right to purchase ________________ of the shares of Common Stock (“Warrant Shares”) of Driveitaway Holdings, Inc., a Delaware corporation (the “Company”), evidenced by the attached copy of the Common Stock Purchase Warrant (the “Warrant”). Capitalized terms used herein and not otherwise defined shall have the respective meanings set forth in the Warrant.
| 1. | Form of Exercise Price. The Holder intends that payment of the Exercise Price shall be made with<br>respect to _________________ Warrant Shares. |
|---|---|
| 2. | Payment of Exercise Price. If cash exercise is selected above, the holder shall pay the applicable<br>Aggregate Exercise Price in the sum of $________________ to the Company in accordance with the terms of the Warrant. |
| --- | --- |
| 3. | Delivery of Warrant Shares. The Company shall deliver to the holder ______________ Warrant Shares<br>in accordance with the terms of the Warrant. |
| --- | --- |
| Date: | |
| --- | --- |
| (Print Name of Registered Holder) | |
| By: | |
| Name: | |
| Title: |
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EXHIBIT B
ASSIGNMENT OF WARRANT
(To be signed only upon authorized transfer of the Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto_____________ the right to purchase _______________ shares of common stock of Driveitaway Holdings, Inc. to which the within Common Stock Purchase Warrant relates and appoints ________________, as attorney-in-fact, to transfer said right on the books of Driveitaway Holdings, Inc. with full power of substitution and re-substitution in the premises. By accepting such transfer, the transferee has agreed to be bound in all respects by the terms and conditions of the within Warrant.
| Dated: | |
|---|---|
| (Signature) * | |
| (Name) | |
| (Address) | |
| (Social Security or Tax Identification No.) |
* The signature on this Assignment of Warrant must correspond to the name as written upon the face of the Common Stock Purchase Warrant in every particular without alteration or enlargement or any change whatsoever. When signing on behalf of a corporation, partnership, trust or other entity, please indicate your position(s) and title(s) with such entity.
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EXHIBIT 10.1
SECONDAMENDMENT TOSECURITIES PURCHASE AGREEMENT
This SECOND AMENDMENTTO THE SECURITIES PURCHASE AGREEMENT (this “Amendment”), dated as of February 10, 2023 (the “Effective Date”), by and between DRIVEITAWAY HOLDINGS, INC. (f/k/a Creative Learning Corporation), a Delaware corporation, with headquarters located at 3401 Market Street, Suite 200/201, Philadelphia, PA 19104 (the “Company”), and AJB CAPITALINVESTMENTS, LLC, a Delaware limited liability company, with its address at 4700 Sheridan Street, Suite J, Hollywood, FL 33021 (the “Buyer”).
WHEREAS:
| A. | The Company and the Buyer are parties to that certain Securities Purchase Agreement, dated as of<br>February 24, 2022, as amended October 31, 2022 (the “Agreement”); Promissory Note of the Company issued in favor of<br>the Buyer, dated February 24, 2022, in the original principal amount of US$750,000.00 (the “Note”); and Warrant of<br>the Company issued in favor of the Buyer, dated February 24, 2022 (the “Warrant”). |
|---|---|
| B. | The Buyer has agreed to increase the principal amount of the Note by $85,000 (the “Additional<br>Principal Amount”) and to extend to the Maturity Date to May 24, 2023. |
| --- | --- |
| C. | In connection therewith, the Buyer and the Company desire to make certain corresponding amendments<br>to the Agreement. |
| --- | --- |
| D. | Section 10(e) of the Agreement provides that the provisions of the Agreement may be amended if<br>such amendment is in writing and signed by the Buyer. |
| --- | --- |
| E. | The Company and the Buyer desire to amend the Agreement in accordance with the terms of this Amendment. |
| --- | --- |
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants, representations, warranties, conditions, and agreements hereinafter expressed, the Company and the Buyer hereby agree as follows:
| 1. | Defined Terms.<br>All capitalized terms used in this Amendment and not otherwise defined shall have the meanings given to such terms in the Agreement,<br>the Note, or the Warrant, as applicable; provided, that: |
|---|---|
| a. | the term “Note” shall be deemed to contemplate a total principal amount of $835,000;<br>and |
| --- | --- |
| b. | the term “Warrant Shares” shall be deemed to contemplate a total of 2,000,000 shares<br>of Common Stock. |
| --- | --- |
| 2. | Amendment to<br>Section 4(c). Section 4(c) of the Agreement is hereby amended to provide that the Additional Principal Amount may only be used for<br>payments to the Company’s auditor, the Company’s internal accounting service, the OTC markets, and the Transfer Agent as<br>an exit fee. |
| --- | --- |
| 3. | Amendment to<br>Section 4(d). Section 4(d) of the Agreement is hereby amended to replace the words “twelve (12) months” with “fifteen<br>(15) months”. |
| --- | --- |
| 4. | Amendment to Section 4(k).<br>Section 4(k) of the Agreement is hereby amended to replace the words “twelve (12) month” with “fifteen (15) month”. |
| 5. | Amendment<br>to Section 4(o). Section 4(o) of the Agreement is hereby amended as follows: |
| a. | The definition of “Adjustment Period” in Section 4(o)(i) is hereby amended to replace<br>the words “thirty-six (36) month” with “forty-eighth month”; and |
| --- | --- |
| b. | Section 4(o)(ii) is hereby deleted in its entirety. |
| --- | --- |
For the avoidance of doubt, all other terms and provisions of Section 4(o), including the adjustment provisions of Section 4(o)(i), will remain in full force and effect.
- Miscellaneous.
| a. | No Further Amendment. Except as expressly amended<br>hereby, the Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in<br>full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or<br>condition of the Agreement or any other document referred to therein. This Amendment shall be deemed to be in full force and effect from<br>and after the execution of this Amendment by the Company and the Buyer, and the Company and the Buyer shall be bound hereby. |
|---|---|
| b. | Incorporation of Certain Provisions by Reference.<br>The following provisions of the Agreement are hereby incorporated into this Amendment by reference mutatis mutandis: Section 10(a)<br>(Governing Law); Section 10(b) (Counterparts; Signature by Facsimile); Section 10(c) (Construction; Headings); Section<br>10(d) (Severability); Section 10(e) (Entire Agreement; Amendments), Section 10(k) (No Strict Construction). |
[signature page follows]
| 2 |
| --- |
IN WITNESS WHEREOF, the undersigned Buyer and the Company have caused this Amendment to be duly executed as of the date first above written.
DRIVEITAWAY HOLDINGS, INC.
| By*:* | /s/ John Possumato |
|---|---|
| Name: | John Possumato |
| Title: | Chief Executive Officer |
AJB CAPITAL INVESTMENTS, LLC
| By*:* | /s/ Ari Blaine |
|---|---|
| Name: | Ari Blaine |
| Title: | Partner |
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EXHIBIT 10.2
February 10, 2023
Driveitaway Holdings, Inc.
3401 Market Street, Suite 200/201
Philadelphia, PA 19104
Attn: John Possumato
VIA ELECTRONIC EMAIL
Dear John:
Reference is made to that certain (i) Securities Purchase Agreement, dated February 24, 2022, as amended October 31, 2022 (the “SPA”), by and between Driveitaway Holdings, Inc. (f/k/a Creative Learning Corporation), a Delaware corporation (the “Company”), and AJB Capital Investments, LLC, a Delaware limited liability company (the “Buyer”), (ii) 10% Promissory Note of the Company issued in favor of the Buyer, dated February 24, 2022, in the original principal amount of US$750,000.00 (the “Note”), and (iii) Warrant for the acquisition of 1,000,000 shares of Common Stock of the Company issued in favor of the Buyer, dated February 24, 2022 (the “Warrant”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the SPA, Note or Warrant, as applicable.
The Buyer desires to provide additional liquidity to the Company in the amount of $85,000 (the “Additional Principal Amount”) and to extend the Maturity Date to May 24, 2022, in exchange for which the Buyer will receive 1,000,000 additional Warrant Shares and the Exercise Price of all Warrant Shares will be set at $0.05.
In recognition thereof, the Buyer and has consented to (i) amend the Note in the form attached hereto as Exhibit A (the “Note Amendment”), pursuant to which the (a) principal amount of the Note will be increased by $85,000 and such amount shall be disbursed by the Buyer for the benefit of the Company as provided in the Note Amendment, and (b) the Maturity Date will be extended to May 24, 2023; (ii) amend the SPA in the form attached hereto as Exhibit B (the “SPA Amendment”) reflecting certain additional amendments in contemplation of the Note Amendment and the A&R Warrant (defined below); and (iii) amend and restate the Warrant in the form attached hereto as Exhibit C (the “A&R Warrant”) pursuant to which the number of shares issuable under the Warrant will be increased to 2,000,000 and the Exercise Price redefined to be $0.05, along with certain other revisions to the Warrant. All other terms, conditions, and provisions of the Note, the SPA, and the Warrant shall remain in full force and effect except as expressly provided in the Note Amendment, the SPA Amendment, and the A&R Warrant, respectively.
Further, the Company agrees that the Buyer will (i) withhold an aggregate of $3,500 from the Additional Principal Amount to reimburse the Buyer’s legal and due diligence expenses, and (ii) disburse the remainder of the Additional Principal Amount directly to certain service providers of the Buyer pursuant to the Buyer’s instructions and as provided in the Note Amendment and the SPA Amendment, rather than directly to the Buyer.
Therefore, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Buyer hereby consents to the Note Amendment, the SPA Amendment, and the A&R Warrant.
Signatures Follow
Sincerely,
AJB Capital Investments LLC
| By: | /s/ Ari Blaine |
|---|---|
| Name: | Ari Blaine |
| Its: | Partner |
Acknowledged and Agreed:
Driveitaway Holdings, Inc.
| By: | /s/ John Possumato |
|---|---|
| Name: | John Possumato |
| Title: | Chief Executive Officer |
EXHIBIT A
Note Amendment
See Attached
EXHIBIT B
SPA Amendment
See Attached
EXHIBIT C
A&R Warrant
See Attached