8-K
MOBIVITY HOLDINGS CORP. (MFON)
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): March 17, 2025
Mobivity
Holdings Corp.
(Exact name of registrant as specified in its charter)
| Nevada | 000-53851 | 26-3439095 |
|---|---|---|
| (State<br> or other jurisdiction of | (Commission | (IRS<br> Employer |
| incorporation) | File<br> Number) | Identification<br> No.) |
3133
West Frye Road, # 215
Chandler**,Arizona**
85226
(Address of principal executive offices) (Zip Code)
(877)
282-7660
(Registrant’s telephone number, including area code)
Not
applicable
(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<br> communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting<br> material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement<br> communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement<br> 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 of each class | Trading Symbol(s) | Name 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 Definitive Agreement. |
|---|
On March 17, 2025, Mobivity Holdings Corp. (the “Company”) entered into a convertible promissory note purchase agreement (the “Agreement”) with four accredited investors, including Thomas B. Akin, a member of the Company’s Board of Directors (“Board”), and Bruce E. Terker, an owner of 5% or more of the outstanding shares of the Company’s common stock, $0.001 par value (“Common Stock”), who each participated on the same terms as the other accredited investors (collectively, the “Investors”). Pursuant to the Agreement, the Company received $2.0 million in proceeds and issued unsecured convertible promissory notes (each a “Convertible Note” and collectively, the “Convertible Notes”) in the aggregate principal amount of $2.0 million. The Convertible Notes were issued as part of a convertible note offering authorized by the Company’s board of directors (the “Offering”) to raise up to $3.0 million from the issuance of Convertible Notes. Messrs. Akin and Terker invested $75,000 and $1.5 million, respectively, in the Offering. The Company will use the proceeds from the sale of the Convertible Notes to continue to ramp up growth of Connected Rewards and for working capital for general corporate purposes.
The Convertible Notes have a stated maturity date of December 30, 2027, bear interest at a simple rate equal to 15% per annum until conversion, and automatically convert into the same equity securities issued for cash in the Qualified Financing, or at the option of the Investors, into the same equity securities issued for cash in a Corporate Transaction, each as described below. Interest on the Convertible Notes will be accreted and added to the unpaid principal balance prior to conversion.
The Convertible Notes will convert into the same equity securities offered in the Qualified Financing (“Conversion Shares”), as described below, at a conversion price equal to the volume-weighted average price of the Common Stock quoted on the OTCQB® Venture Market operated by OTC Markets Group Inc. over the 90 trading days immediately preceding such date (the “Conversion Price”). Under the Convertible Note, a “Qualified Financing” means the first transaction or series of related transactions in which the Company (i) sells any of its equity securities, (ii) receives a cash infusion related to the negotiation of, or entering into, a strategic partnership, (iii) on or before the maturity of the Convertible Notes and (iv) with gross proceeds to the Company of at least $ $4,500,000 (excluding the amount attributable to the conversion of the Convertible Notes).
In addition, in the event of a Corporate Transaction, as described below, the Investor may elect either (i) a cash payment equal to the outstanding principal and accrued but unpaid interest under the Convertible Notes or (ii) convert the Convertible Notes into shares of the Company’s Common Stock at the Conversion Price. A “Corporate Transaction” means: (1) the closing of the sale, transfer or other disposition, in a single transaction or series of related transactions, of all or substantially all of the Company’s assets; (2) the consummation of a merger or consolidation of the Company with or into another entity, subject to certain customary exceptions; or (3) the closing of the transfer (whether by merger, consolidation or otherwise), in a single transaction or series of related transactions, to a “person” or “group” (within the meaning of Section 13(d) and Section 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the Company’s capital stock if, after such closing, such person or group would become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the outstanding voting securities of the Company (or the surviving or acquiring entity).
The issuance and sale of the Convertible Notes and Conversion Shares (collectively, the “Securities”) has not been, and will not upon issuance be, registered under the Securities Act, and the Securities may not be offered or sold in the United States absent registration under or exemption from the Securities Act and any applicable state securities laws. The Securities were issued and sold in reliance upon an exemption from registration afforded by Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D promulgated under the Securities Act, based on the following facts: each of the Investors has represented that it is an accredited investor as defined in Rule 501(a) promulgated under the Securities Act, that it is acquiring the Securities for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws and that it has sufficient investment experience to evaluate the risks of the investment; the Company used no advertising or general solicitation in connection with the issuance and sale of the Securities to the Investors; and, the Securities will be issued as restricted securities.
The Company did not engage any underwriter or placement agent in connection with the Convertible Notes Offering.
The preceding description of the Agreement and Convertible Notes is qualified in its entirety by reference to the copies of the forms of Agreement and Convertible Note filed herewith as Exhibit 10.1 and Exhibit 10.2 to this Current Report on Form 8-K, respectively, which are incorporated herein by reference.
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
|---|
The disclosure in Item 1.01 above is incorporated into this Item 2.03 by reference.
| Item 3.02. | Unregistered Sales of Equity Securities. |
|---|
The disclosure in Item 1.01 above is incorporated into this Item 3.02 by reference.
| Item 9.01. | Financial Statements and Exhibits. |
|---|
(d) Exhibits
EXHIBIT
INDEX
| Exhibit No. | Description |
|---|---|
| 10.1 | Form of Convertible Promissory Note Purchase Agreement |
| 10.2 | Form of Convertible Promissory Note |
| 104 | Cover<br> Page Interactive Data File (embedded within the Inline XBRL document) |
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 hereunto duly authorized.
| Mobivity Holdings Corp. | ||
|---|---|---|
| Date:<br> March 18, 2025 | By: | /s/ Skye Fossey-Tomaske |
| Skye<br> Fossey-Tomaske | ||
| Interim<br> Chief Financial Officer |
Exhibit 10.1
ExecutionVersion
CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT
This CONVERTIBLE PROMISSORY NOTE PURCHASE AGREEMENT (this “Agreement”), dated as of January [●], 2025 is made by and among Mobivity Holdings Corp., a Nevada corporation (the “Company”), and the investors listed on Schedule I hereto (collectively, the “Investors”).
Recitals
A. The Company and the Investors are executing and delivering this Agreement in reliance upon the exemptions from securities registration afforded by Section 4(2) of the Securities Act and Rule 506 under Regulation D.
B. The Company desires to sell to each Investor, and each Investor desires to purchase from the Company a Convertible Note in an original principal amount equal to the amount set forth on the Schedule I attached hereto, on the terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Investors hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE OF CONVERTIBLE PROMISSORY NOTES
Section1.01 Purchase and Sale of Convertible Notes. The Company agrees to issue and sell to each Investor, and each Investor agrees to purchase from the Company, the Convertible Note for the aggregate purchase price set forth across from their respective name on Schedule I (the “Purchase Price”). Each Investor will deliver or will cause to be delivered to the Company at or prior to the Closing the Purchase Price by wire transfer of immediately available funds to the Company’s bank account, or such other means as the Investors and Company agree.
Section1.02 Delivery of Convertible Notes. Promptly on or after the Closing Date, the Company will deliver or cause the delivery to each Investor a duly executed Convertible Note in substantially the form attached to this Agreement as Exhibit A.
Section1.03 Closing Date. Subject to the satisfaction or waiver of the conditions set forth in herein, the Closing will take place at 3:01 p.m., Pacific Time, on January [●], 2025, or at another date or time agreed upon by the parties to this Agreement (the “Closing Date”). The Closing will occur remotely by exchange of documents and signatures (or their electronic counterparts) on the Closing Date, or at such other time, date or place as the parties mutually agree.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF INVESTORS
Each Investor represents and warrants to the Company, severally and solely with respect to itself and its purchase hereunder and not with respect to any other Investor, that:
Section2.01 Organization and Qualification. To the extent the Investor is an entity, the Investor is duly incorporated, validly existing and in good standing under the laws of the state of organization, with full power and authority (corporate and other) to own, lease, use and operate its properties, if any, and to carry on its business as and where now owned, leased, used, operated and conducted. To the extent the Investor is an entity, the Investor is duly qualified to do business and is in good standing in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified or in good standing would not have a material adverse effect on the business or financial condition of the Investor.
| Convertible Promissory Note Purchase Agreement | Page 1 |
| --- | --- |
Section2.02 Authorization; Enforcement. To the extent the Investor is an entity, (a) the Investor has all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and its Convertible Note, to consummate the transactions contemplated hereby and thereby and to purchase the Securities in accordance with the terms hereof and thereof; (b) the execution, delivery and performance of this Agreement and the Investor’s Convertible Note by the Investor and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all required parties and no further consent or authorization of Investor, its board of directors or its shareholders or members is required; (c) this Agreement has been duly executed and delivered by the Investor; and (d) assuming the valid and binding execution of this Agreement and the Convertible Notes by the Company and compliance with the terms of this Agreement and the Convertible Notes by the Company, each of this Agreement and the Investor’s Convertible Note(s) constitutes a legal, valid and binding obligation of the Investor enforceable against the Investor by the Company in accordance with their respective terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, or moratorium or similar laws affecting the rights of creditors generally and the application of general principles of equity. To the extent the Investor is a natural person, this Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor and is a valid and binding agreement of the Investor, enforceable in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and the application of general principles of equity.
Section2.03 Investment Purpose. The Investor is purchasing the Convertible Note(s) for its own account and not with a present view toward the public sale or distribution thereof.
Section2.04 Limited Markets. The Investor understands that no public trading market now exists for the Convertible Notes and no active trading market exists for the Convertible Notes, and that the Company has made no assurances that any such markets will ever exist or develop.
Section2.05 Accredited Investor Status. The Investor is an “accredited investor” as defined in Rule 501(a) of Regulation D and satisfies the criteria indicated on the signature page hereto.
Section2.06 Reliance on Exemptions. The Investor understands that the Convertible Notes are being offered and sold to it in reliance upon specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire the Convertible Notes.
Section2.07 Information and Sophistication. The Investor and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Company, and materials relating to the offer and sale of the Convertible Notes, that have been requested by the Investor or its advisors, if any. The Investor and its advisors, if any, have been afforded the opportunity to ask questions of the Company. The Investor acknowledges and understands that its investment in the Convertible Notes involves a significant degree of risk, including the risks reflected in the Company’s Form 10-K for the fiscal year ended December 31, 2023, as the same may be amended or supplemented from time to time, by the Company’s quarterly reports on Form 10-Q and other SEC Documents. The Investor is experienced and knowledgeable in financial and business matters, is capable of evaluating the merits and risks of investing in the Securities, and does not need or desire the assistance of a knowledgeable representative to aid in the evaluation of such risks who the Investor intends to use in connection with a decision as to whether to purchase the Securities.
| Convertible Promissory Note Purchase Agreement | Page 2 |
| --- | --- |
Section2.08 Governmental Review. The Investor understands that no United States federal or state agency or any other government or governmental agency has passed upon or made any recommendation or endorsement of the Securities or an investment therein.
Section2.09 Transfer or Resale. The Investor understands that:
(a) the Securities have not been and are not being registered under the Securities Act or any applicable state securities laws and, consequently, the Investor may have to bear the risk of owning the Securities for an indefinite period of time because the Securities may not be offered, sold, pledged or otherwise transferred except (i) pursuant to an exemption from registration under the Securities Act or (ii) pursuant to an effective registration statement under the Securities Act, in each case in accordance with all applicable state securities laws and the securities laws from other jurisdictions and in case of a transaction exempt from registration, unless the Company has received an opinion of counsel satisfactory to it that such transaction does not require registration under the Securities Act and such other applicable laws;
(b) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144 and, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with another exemption under the Securities Act or the rules and regulations of the SEC thereunder; and
(c) neither the Company nor any other person is under any obligation to register the Securities under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.
Section2.10 Legends. The Investor understands that until (a) the Securities may be sold by the Investor under Rule 144 or (b) such time as the resale of the Securities has been registered under the Securities Act, the certificates representing the Securities will bear a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of the certificates for such Securities):
THE SECURITIES EVIDENCED HEREBY, AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. SUCH SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIES LAWS AND THE SECURITIES LAWS OF OTHER JURISDICTIONS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.
Section2.11 Residency. The Investor is a resident of the jurisdiction set forth immediately below such Investor’s name on the signature pages hereto.
| Convertible Promissory Note Purchase Agreement | Page 3 |
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Section2.12 No Broker Fees. The Investor has not engaged any brokers, finders, or agents, and the Investor has not incurred, and will not incur, directly or indirectly, as a result of any action taken by the Investor, any liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Investors that:
Section3.01 Organization and Qualification. The Company is duly incorporated, validly existing and in good standing under the laws of the State of Nevada, with full power and authority (corporate and other) to own, lease, use and operate its properties, if any, and to carry on its business as and where now owned, leased, used, operated and conducted. The Company is duly qualified to do business and is in good standing in every jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified or in good standing would not have a Material Adverse Effect.
Section3.02 Authorization; Enforcement.
(a) The Company has all requisite corporate power and authority to enter into and to perform its obligations under this Agreement and the Convertible Notes, to consummate the transactions contemplated hereby and thereby and to issue the Convertible Notes in accordance with the terms hereof and thereof.
(b) The execution, delivery and performance of this Agreement and the Convertible Notes by the Company and the consummation by it of the transactions contemplated hereby and thereby (including without limitation the issuance of the Convertible Notes and the issuance and reservation for issuance of the Conversion Shares in accordance with the Company’s Articles of Incorporation, this Agreement and the Convertible Notes) have been duly authorized by the Company’s board of directors and no further consent or authorization of the Company, its board of directors or its shareholders is required.
(c) This Agreement and the Convertible Notes have been duly executed and delivered by the Company.
(d) Assuming the valid and binding execution of this Agreement by the Investor and compliance with the terms of this Agreement and the Convertible Notes by such Investor, each of this Agreement and the Convertible Notes constitutes a legal, valid and binding obligation of the Company enforceable against the Company by such Investor in accordance with their respective terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, or moratorium or similar laws affecting the rights of creditors generally and the application of general principles of equity.
Section3.03 Issuance of the Convertible Notes. The Convertible Notes have been duly authorized and, upon issuance in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable and free from all taxes, liens, claims, encumbrances and charges with respect to the issuance thereof (other than liens imposed by an Investor). Once the Company amends its Articles of Incorporation in accordance with Section 4.03 hereto, the Conversion Shares will be duly authorized and reserved for issuance, and, upon issuance in connection with or upon conversion of the Convertible Notes in accordance with the terms thereof, will be validly issued, fully paid and non-assessable, and free from all taxes, liens, claims and encumbrances and charges with respect to the issuance thereof (other than liens imposed by an Investor).
| Convertible Promissory Note Purchase Agreement | Page 4 |
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Section3.04 No Conflicts; No Violation.
(a) The execution, delivery and performance of this Agreement and the Convertible Notes by the Company, and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance of the Convertible Notes and Conversion Shares) do not and will not (i) once the Company amends its Articles of Incorporation in accordance with Section 4.03 hereto, conflict with or result in a violation of any provision of the Company’s Articles of Incorporation or Bylaws, (ii) violate or conflict with, or result in a breach of any provision of, or constitute a default (or an event which with notice or lapse of time or both could become a default) under, or give to others any rights of termination, amendment (including without limitation, the triggering of any anti-dilution provision), acceleration or cancellation of, any agreement, indenture or instrument to which the Company is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including U.S. federal and state securities laws and regulations and regulations of any self-regulatory organizations to which the Company or its securities are subject) applicable to the Company or by which any property or asset of the Company is bound or affected (except, in the case of clauses (ii) and (iii), for such conflicts, breaches, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect).
(b) The Company is not in default (and no event has occurred which with notice or lapse of time or both could put the Company in default) under, and the Company has not taken any action or failed to take any action that (and no event has occurred which, without notice or lapse of time or both) would give to others any rights of termination, amendment, acceleration or cancellation of, any agreement or instrument to which the Company is a party relating to indebtedness for borrowed money, except for possible defaults as would not, individually or in the aggregate, have a Material Adverse Effect.
Section3.05 SEC Documents. Since January 1, 2024, the Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Exchange Act (all of the foregoing filed prior to the date hereof being referred to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act or the Securities Act, as the case may be, and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, 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 light of the circumstances under which they were made, not misleading, other than SEC Documents that have been amended as of the date hereof.
Section3.06 Broker Fees. The Company has not engaged any brokers, finders, or agents, and the Company has not incurred, and neither the Company nor any Investor will incur, directly or indirectly, as a result of any action taken by the Company, any other liability for brokerage or finders’ fees or agents’ commissions or any similar charges in connection with this Agreement.
ARTICLE IV.
COVENANTS
Section4.01 Use of Proceeds. The Company will use the proceeds from the sale of the Convertible Notes for general working capital and corporate purposes.
Section4.02 Expenses. Unless otherwise specified in this Agreement, each party will pay its own fees and expenses, as well as the fees and expenses of its own advisors and consultants, in connection with the entry into this Agreement and the transactions contemplated by this Agreement.
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Section4.03 Reservation of Shares. After Closing, the Company will use its commercially reasonable efforts to obtain shareholder approval of and amend its Articles of Incorporation to authorize and reserve a sufficient number of shares of Common Stock to provide for the full conversion of the outstanding Convertible Notes and issuance of the Conversion Shares in connection therewith (based on the conversion price of the Convertible Notes in effect from time to time).
ARTICLE V.
DEFAULT
Section5.01 Events of Default. Each of the following events will be an event of default (an “Event of Default”) for purposes of this Agreement:
(a) if default is made in the punctual payment of interest on the Convertible Notes as provided in the Convertible Notes, and such default has continued for a period of ten days after written notice thereof to the Company by the holder of any of the Convertible Notes; or
(b) if default is made in the punctual payment of any installment of the principal of the Convertible Notes and such default has continued for a period of five days after written notice thereof to the Company by the holder of any of the Convertible Notes; or
(c) If a trustee, receiver, conservator or other similar official is appointed for the Company or for all or substantially all of the Company’s assets and the order of such appointment is not discharged, vacated or stayed within 60 days after such appointment; or
(d) if any judgment, writ or warrant of attachment or of any similar process in an amount in excess of $10,000,000 is entered or filed against the Company or against any of the property or assets of the Company and remains unpaid, unvacated, unbonded or unstayed for a period of 60 days; or
(e) if an order for relief is entered in any Federal bankruptcy proceeding in which the Company is the debtor; or if bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings, or other proceedings for relief under any bankruptcy or similar law or laws for the relief of debtors, are instituted by or against the Company and, if instituted against the Company, are consented to or, if contested by the Company, are not dismissed by the adverse parties or by an order, decree or judgment within 60 days after such institution; or
(f) if default is made in the due and punctual performance or observance of any other material term contained in this Agreement, the Convertible Notes or other material outstanding indebtedness of the Company, and such default has continued for a period of 30 days after the earlier of the Company’s knowledge thereof or written notice thereof to the Company by the holder of any Convertible Note or such indebtedness.
Section5.02 Remedies Upon Events of Default. For so long as any Convertible Note remains outstanding, upon the occurrence of an Event of Default as herein defined, and so long as such Event of Default continues unremedied, then, each holder of any Convertible Notes will be entitled by notice to declare the principal of and any accrued interest on the Convertible Notes, to be immediately due and payable, and thereupon the Convertible Notes, including both outstanding principal and accrued but unpaid interest will become immediately due and payable; provided, however, that when any Event of Default described in Section 5.01(e) hereof has occurred, the Convertible Notes will immediately become due and payable without presentment, demand or notice of any kind.
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Section5.03 Notice of Defaults. When, to its knowledge, any Event of Default has occurred or exists, the Company agrees to give written notice within ten business days of such Event of Default to the holders of all outstanding Securities. If the holder of any Securities will give any notice or take any other actions in respect of a claimed Event of Default, the Company will forthwith give written notice thereof to all other holders of Securities at the time outstanding, describing such notice or action and the nature of the claimed Event of Default.
Section5.04 Remedies Cumulative. No right, power or remedy conferred upon any holder of Securities will be exclusive, and each such right, power or remedy will be cumulative and in addition to every other right, power or remedy, whether conferred hereby or by any such security or now or hereafter available at law or in equity or by statute or otherwise.
Section5.05 Remedies not Waived. No course of dealing between the Company and any Investor or the holder of any Securities, and no delay in exercising any right, power or remedy conferred hereby or by any such security or now or hereafter existing at law or in equity or by statute or otherwise, will operate as a waiver of or otherwise prejudice any such right, power or remedy; provided, however, that this Section 5.05 will not be construed or applied so as to negate the provisions and intent of any statute that is otherwise applicable.
ARTICLE VI.
DEFINITIONS; CONSTRUCTION
Section6.01 Defined Terms. Capitalized terms used herein and not otherwise defined in this agreement have the following meanings:
(a) “Affiliate” has the meaning set forth in Rule 405 promulgated under the Securities Act.
(b) “Business day” shall mean any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of Arizona are authorized or required by law or other governmental action to close.
(c) “Closing” means the closing of the purchase and sale of the Convertible Notes under this Agreement.
(d) “Closing Date” has the meaning set forth in Section 1.03.
(e) “Conversion Shares” means the shares of Common Stock issuable upon conversion of the Convertible Notes.
(f) “Convertible Note” means the means the Convertible Promissory Notes issuable pursuant to this Agreement, in the form attached hereto as Exhibit A.
(g) “Common Stock” means the common stock, par value $0.001 per share, of the Company.
(h) “Company” means Mobivity Holdings Corp., a Nevada corporation.
(i) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, or any similar successor statute.
(j) “Investors” means the investors whose names are set forth on Schedule I attached to this Agreement, and their permitted transferees.
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(k) “Material Adverse Effect” means a material adverse effect on (a) the assets, liabilities, business, properties, financial condition or results of operations of the Company, (b) the ability of the Company to perform its obligations under this Agreement or (c) the Convertible Notes.
(l) “Registrable Securities” means the Conversion Shares and any shares of capital stock issued or issuable from time to time (with any adjustments) in exchange for or otherwise with respect to the Convertible Notes.
(m) “Regulation D” means Regulation D as promulgated by the SEC under the Securities Act.
(n) “Rule 144” means Rule 144 promulgated under the Securities Act, or any successor rule.
(o) “Rule 415” means Rule 415 promulgated under the Securities Act, or any successor rule, and applicable rules and regulations thereunder.
(p) “SEC” means the United States Securities and Exchange Commission.
(q) “SEC Documents” has the meaning set forth in Section 3.05.
(r) “Securities” means the Convertible Notes, and all notes of the Company issued in exchange or substitution therefor, and the Conversion Shares.
(s) “Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute.
ARTICLE VII.
GOVERNING LAW; MISCELLANEOUS
Section7.01 Governing Law; Jurisdiction. This Agreement will be governed by and interpreted in accordance with the laws of the State of Arizona without regard to the principles of conflict of laws. The parties hereto hereby submit to the exclusive jurisdiction of the United States federal and state courts sitting in the city of Phoenix, Arizona with respect to any dispute arising under this Agreement, the agreements entered into in connection herewith or the transactions contemplated hereby or thereby. The parties also agree that any disputes arising under this Agreement, will be exclusively venued in the United States federal and state courts located in the city of Phoenix, Arizona, except for actions or proceedings regarding the enforcement of awards or judgments.
Section7.02 Counterparts; Signatures by Facsimile. This Agreement may be executed in two or more counterparts, all of which are considered one and the same agreement and will become effective when counterparts have been signed by each party and delivered to the other parties. This Agreement, once executed by a party, may be delivered to the other parties hereto by facsimile transmission of a copy of this Agreement bearing the signature of the party so delivering this Agreement.
Section7.03 Headings. The headings of this Agreement are for convenience of reference only, are not part of this Agreement and do not affect its interpretation.
Section7.04 Severability. If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision will be deemed modified in order to conform with such statute or rule of law. Any provision hereof that may prove invalid or unenforceable under any law will not affect the validity or enforceability of any other provision hereof.
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Section7.05 Entire Agreement. This Agreement and the Convertible Notes constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein or therein. This Agreement supersedes all prior agreements and understandings among the parties hereto with respect to the subject matter hereof.
Section7.06 Consents; Waivers and Amendments. The provisions of this Agreement may only be amended, modified, supplemented or waived upon the prior written consent of the Company and the holders of a majority of the Registrable Securities. Except as otherwise specifically provided herein, in each case in which approval or action of the Investors is required by the terms of this Agreement, such requirement will be satisfied upon receipt of the written consent of the holders of a majority of the Registrable Securities, which consent will bind the holders of all of the outstanding Convertible Notes and Registrable Securities; provided, however, that no change or modification to the conversion price (other than in accordance with the adjustment provisions set forth herein and in the Convertible Notes) will be effective as to a holder of Convertible Notes without the prior written consent of such holder.
Section7.07 Notices. Any notices required or permitted to be given under the terms of this Agreement must be sent by certified or registered mail (return receipt requested) or delivered personally or by courier (including a recognized overnight delivery service) or by email and will be effective five days after being placed in the mail, if mailed by regular U.S. mail, or upon receipt, if delivered personally, by courier (including a recognized overnight delivery service) or by email, in each case addressed to a party. The addresses for such communications are:
If to the Company, then to:
Mobivity Holdings Corp.
3133 West Frye Road, #215
Chandler, Arizona 85226
Attention: Bryce Daniels, President; Skye Fossey-Tomaske, Chief Financial Officer
Email: bryce.daniels@mobivity.com; skye.fosseytomaske@mobvity.com
If to an Investor: To the address set forth immediately below such Investor’s name on the signature pages hereto.
Each party will provide written notice to the other parties of any change in its address.
Section7.08 Successors and Assigns. This Agreement is binding upon and will inure to the benefit of the parties hereto and their respective successors and permitted assigns. The Company may assign this Agreement at any time in connection with a sale or acquisition of the Company, whether by merger, consolidation, sale of all or substantially all of the Company’s assets, or similar transaction, without the consent of the Investors; provided, that the successor or acquirer agrees in writing to assume all of the Company’s rights and obligations under this Agreement.
Section7.09 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
Section7.10 Survival. Unless otherwise set forth in this Agreement, the representations and warranties of the Company and the Investors contained in or made pursuant to this Agreement will survive the execution and delivery of this Agreement and the closings under this Agreement and will in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of the Investors or the Company.
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Section7.11 Further Assurances. Each party will do and perform, or cause to be done and performed, all such further acts and things, and will execute and deliver all other agreements, certificates, instruments and documents, as another party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
Section7.12 No Strict Construction. The language used in this Agreement is deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.
Section7.13 Equitable Relief. Each party recognizes that, if it fails to perform or discharge any of its obligations under this Agreement, any remedy at law may prove to be inadequate relief to the other parties. Each of the parties therefore agrees that the other parties are entitled to temporary and permanent injunctive relief in any such case without the necessity of proving actual damages.
Section7.14 Independent Nature of Investors’ Obligations and Rights. The obligations of each Investor under either its Convertible Note or this Agreement are several and not joint with the obligations of any other Investor, and no Investor will be responsible in any way for the performance of the obligations of any other Investor under a Convertible Note or this Agreement. Nothing contained herein or in any Convertible Note or this Agreement, and no action taken by any Investor pursuant thereto, will be deemed to constitute the Investors as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Investors are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement. Each Investor will be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement, and it will not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose. Each Investor has been represented by its own separate legal counsel in their review and negotiation of their Convertible Note or this Agreement. The Company has elected to provide all Investors with the same terms for the convenience of the Company and not because it was required or requested to do so by the Investors.
Section7.15 Trusts and Other Entity Investors. To the extent any holder of Securities is a trust or other entity, the trustee or officers, directors, employees, partners, members or other control persons of such trust or entity will be bound by the terms of this Agreement as it relates to the Securities held by such trust or other entity. Each Investor agrees that it will cause such persons to execute and deliver to the Company an acknowledgement of the obligations set forth in this Agreement to the extent reasonably requested by the Company.
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| Convertible Promissory Note Purchase Agreement | Page 10 |
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed as of the date first above written.
| Company: | |
|---|---|
| Mobivity Holdings Corp. | |
| By: | |
| Name: | Bryce<br> Daniels |
| Title: | President |
| Convertible Promissory Note Purchase Agreement | *Signature Page* |
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed as of the date first above written.
| Investor (Natural Person(s)): |
|---|
| Signature(s): |
| Name(s): |
| Address: |
| Email: |
| Fax: |
| U.S.<br> Taxpayer ID(s): ________________________________ |
| --- |
Markall that are applicable:
| ☐ | Investor<br> is an individual with a net worth, or a joint net worth together with his or her spouse,<br> in excess of $1,000,000. |
|---|---|
| ☐ | Investor<br> is an individual that had an individual income in excess of $200,000 in each of the prior<br> two years and reasonably expects an income in excess of $200,000 in the current year or an<br> individual that had with his/her spouse joint income in excess of $300,000 in each of the<br> prior two years and reasonably expects joint income in excess of $300,000 in the current<br> year. |
| --- | --- |
| ☐ | Investor<br> is a director or executive officer of the Company. |
| --- | --- |
UNITEDSTATES TAXABLE INVESTORS ONLY
Underpenalty of perjury, by signature above, each Investor signatory certifies that (a) the Social Security Number(s) or Taxpayer ID Number(s)shown above are the true, correct and complete Social Security Number(s) or Taxpayer ID Number(s) for the Investor and (b) the Investoris not subject to backup withholding because: (i) Investor is exempt from backup withholding; (ii) Investor has not been notified bythe Internal Revenue Service (the “IRS”) that Investor is subject to backup withholding; or (iii) the IRS has notified Investorthat Investor is no longer subject to backup withholding.
| Convertible Promissory Note Purchase Agreement | *Signature Page* |
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed as of the date first above written.
| Investor (Entity Name): |
|---|
| By: |
| Name: |
| Title: |
| Address: |
| --- |
| Email: |
| Fax: |
| U.S.<br> Taxpayer ID(s): ________________________________ |
| --- |
Markall that are applicable:
| ☐ | Investor<br> is an entity all of whose members are either (a) individuals with a net worth, or a joint<br> net worth together with the individual’s spouse, in excess of $1,000,000, (b) individuals<br> that had an individual income in excess of $200,000 in each of the prior two years and reasonably<br> expect an income in excess of $200,000 in the current year or (c) individuals that had with<br> the individual’s spouse joint income in excess of $300,000 in each of the prior two<br> years and reasonably expect joint income in excess of $300,000 in the current year. |
|---|---|
| ☐ | Investor<br> is a private business development company as defined in Section 202(a)(22) of the Investment<br> Advisers Act of 1940, an investment company registered under the Investment Company Act of<br> 1940, a business development company as defined in Section 2(a)(48) of the Investment Company<br> Act of 1940 or a Small Business Investment Company licensed by the U.S. Small Business Administration<br> under Section 301(c) or (d) of the Small Business Investment Act of 1958. |
| --- | --- |
| ☐ | Investor<br> has total assets in excess of $5,000,000, was not formed for the specific purpose of acquiring<br> the securities and is one or more of the following (check one or more, as appropriate): |
| --- | --- |
| ☐ | an<br> organization described in Section 501(c)(3) of the Internal Revenue Code; |
| --- | --- |
| ☐ | a<br> corporation; |
| --- | --- |
| ☐ | a<br> Massachusetts or similar business trust; or |
| --- | --- |
| ☐ | a<br> partnership. |
| --- | --- |
| ☐ | Investor<br> is a trust with total assets exceeding $5,000,000 that was not formed for the specific purpose<br> of acquiring securities and whose purchase is directed by a person who has such knowledge<br> and experience in financial and business matters that he is capable of evaluating the merits<br> and risks of the investment in the securities. |
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UNITEDSTATES TAXABLE INVESTORS ONLY
Underpenalty of perjury, by signature above, each Investor signatory certifies that (a) the Taxpayer ID Number(s) shown above are the true,correct and complete Taxpayer ID Number(s) for the Investor and (b) the Investor is not subject to backup withholding because: (i) Investoris exempt from backup withholding; (ii) Investor has not been notified by the Internal Revenue Service (the “IRS”) that Investoris subject to backup withholding; or (iii) the IRS has notified Investor that Investor is no longer subject to backup withholding.
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Scheduleof Investors
| Investor Name | Aggregate Purchase Price | Principal Amount of Note Issued at Closing | Date of Initial<br> <br>Note Issue | |
|---|---|---|---|---|
| TOTAL | — |
| Convertible Promissory Note Purchase Agreement | *Signature Page* |
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Exhibit A
toConvertible Promissory Note Purchase Agreement
Formof Convertible Note
(attached)
| Convertible Promissory Note Purchase Agreement | Page A-1 |
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Exhibit 10.2
Execution Version
THESECURITIES EVIDENCED HEREBY AND THE SECURITIES ISSUABLE UPON CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. SUCH SECURITIES MAY NOT BEOFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (2)PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE STATE SECURITIESLAWS AND THE SECURITIES LAWS OF OTHER JURISDICTIONS, AND IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION, UNLESS THE COMPANY HASRECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT AND SUCHOTHER APPLICABLE LAWS.
MobivityHoldings Corp.
SeniorSecured Convertible Promissory Note
| $[●] | January [●], 2025 |
|---|
For value received, Mobivity Holdings Corp., a Nevada corporation (the “Company”), promises to pay to the order of [●] (the “Investor”), at such place as the Investor may from time to time in writing designate to the Company, the principal sum of $[●], together with all accrued but unpaid interest thereon as set forth below.
LoanAgreement. This Convertible Promissory Note (this “Note”) is one of several promissory notes (the “Notes”) issued by the Company pursuant to that certain Convertible Promissory Note Purchase Agreement between the Company and the investors party thereto dated as of January [●], 2025 (the “Agreement”). All capitalized terms not otherwise defined herein having the meaning set forth in the Agreement. By acceptance of this Note, Investor expressly agrees, for the benefit of the present and future holders of such indebtedness, to be bound by the provisions of this Note and the Agreement.
PaymentTerms; Maturity. Simple interest on the unpaid principal balance of this Note will accrue at the rate of 15.0% per annum. Accrual of interest will commence on the date of this Note, will continue until this Note is fully paid, and will be payable quarterly in Common Stock based on the VWAP, provided, however, that the Company has amended its Articles of Incorporation in accordance with Section 4.03 of the Agreement. If the Articles of Incorporation have not been amended, pursuant to Section 4.03 of the Agreement, at any time when the quarterly interest payments are due, no Common Stock shall be payable and all interest shall accrue until the next quarterly period. The interest rate will be computed on the basis of the actual number of days elapsed in a 365-day year. If not sooner converted as provided below, the entire unpaid principal balance, together with all accrued but unpaid interest, will be due and payable in cash on December 30, 2027 (the “Maturity Date”). The Maturity Date of this Note and all of the other Notes may be extended by the holders of a majority of the then-outstanding principal amount of the Notes (the “Majority Investors”). All payments of interest and principal will be made in lawful money of the United States of America and will be made pro rata among all investors under the Agreement, without any deduction by way of set-off, counterclaim, or otherwise. All payments will be applied first to interest and thereafter to principal. All payments will be made to the Investor at its address set forth in the Agreement or at such other address as is provided in writing to the Company.
Ranking. The payment of all or any portion of the outstanding principal amount of this Note and all interest hereon shall be pari passu in right of payment and in all other respects to the convertible notes of the Company issued pursuant to that certain Amended and Restated Credit Facility Agreement, dated as of November 11, 2022 by and between the Company and Thomas B. Akin, as may be amended from time to time.
Convertible Promissory Note Page 1 Repayment. All amounts due under this Note may be repaid or prepaid by the Company in whole or in part at any time without penalty or premium, at the option of the Company. However, the Company will give the Investor five days’ prior written notice of any such payment and, at the time of payment, the Company will pay all accrued but unpaid interest on the portion of the principal balance repaid.
Conversion.
(a) NoConversion. Until the Articles of Incorporation of the Company have been amended pursuant to Section 4.03 of the Agreement, the Investors will not convert the Notes.
(b) OptionalConversion. Subject to Section 5(a) hereof, at any time after six months from the date but prior to the closing of a Corporate Transaction (subject to the limitations in Section 5(d)), all or part of the outstanding principal and/or accrued but unpaid interest under this Note may, upon the written election of the Investor, be converted into shares of the Company’s Common Stock at the Conversion Price. The written election of the Investor must specify the amount of outstanding and/or accrued but unpaid interest to be converted and the intended date of such conversion.
(c) MandatoryConversion. On the closing date of a Qualified Financing, all of the outstanding principal and accrued but unpaid interest on such closing date will be automatically converted (the “Mandatory Conversion”) into shares of the Company’s Common Stock at the Conversion Price.
(d) CorporateTransaction Conversion. The Company shall notify the Investor at least 10 days prior to the closing of a Corporate Transaction involving the Company. Within five days of receipt of such notice, the Investor may elect either (i) a cash payment equal to the outstanding principal and accrued but unpaid interest under this Note or (ii) convert the Note into shares of the Company’s Common Stock at the Conversion Price pursuant to Section 5(a).
(e) NoFractional Shares. The number of shares and/or units of Company securities issuable pursuant to this Section 5 will be rounded down to the nearest whole share.
(f) Definitions. For purposes of this Note, the following terms shall have the meanings ascribed to them below:
“CommonStock” means the Company’s common stock, $0.001 par value.
“ConversionPrice” shall be equal to the VWAP.
“CorporateTransaction” means: (1) the closing of the sale, transfer or other disposition, in a single transaction or series of related transactions, of all or substantially all of the Company’s assets; (2) the consummation of a merger or consolidation of the Company with or into another entity (except a merger or consolidation in which the holders of capital stock of the Company immediately prior to such merger or consolidation continue to hold a majority of the outstanding voting securities of the capital stock of the Company or the surviving or acquiring entity immediately following the consummation of such transaction); or (3) the closing of the transfer (whether by merger, consolidation or otherwise), in a single transaction or series of related transactions, to a “person” or “group” (within the meaning of Section 13(d) and Section 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of the Company’s capital stock if, after such closing, such person or group would become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the outstanding voting securities of the Company (or the surviving or acquiring entity). For the avoidance of doubt, a transaction will not constitute a “Corporate Transaction” if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately prior to such transaction. Notwithstanding the foregoing, the sale of equity securities in a bona fide financing transaction will not be deemed a “Corporate Transaction.”
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“VWAP” means, with respect to any date, the volume-weighted average price of the Common Stock quoted on the OTCQB ® Venture Market operated by OTC Markets Group Inc. over the ninety (90) Trading Days immediately preceding such date.
“QualifiedFinancing” means the first transaction or series of related transactions in which the Company (i) sells any of its equity securities, (ii) receives a cash infusion related to the negotiation of, or entering into, a strategic partnership, (iii) on or before the maturity of the Convertible Notes and (iv) with gross proceeds to the Company of at least $ $4,500,000 (excluding the amount attributable to the conversion of the Convertible Notes).
Actionson Conversion. At such time as this Note is converted into Company securities, the rights of the Investor under this Note will cease and such person will be treated for all purposes as the record holder of the equity securities issuable upon conversion. As promptly as practicable but no later than the applicable closing and/or conversion date, the Investor (a) will execute such purchase and other agreements executed by the other purchasers of the equity securities and (b) will surrender this Note to the Company at its principal office for cancellation. As promptly as practicable after receipt of the Note and the signature pages required by this Section 6, the Company may at its election either (i) issue a certificate or certificates representing the equity securities issuable upon conversion, or (ii) not issue any certificate representing the equity securities and instead document the Investor’s interest in the equity securities by recording the equity securities with the Company’s transfer agent (or another custodian selected by the Company) in book-entry form.
Restrictionon Transfer of the Note**.** Any sale or transfer of this Note must comply with the requirements contained in the Agreement.
Eventsof Default. Upon the occurrence of any one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note, including any accrued but unpaid interest, may be declared to be or shall become immediately due and payable as provided in the Agreement.
NoRights or Liabilities as Holder of Equity Interests. This Note does not of itself entitle the Investor to any voting rights or other rights as a holder of equity interests in the Company. In the absence of conversion of this Note, no provisions of this Note, and no enumeration herein of the rights or privileges of the Investor, shall cause the Investor to be a holder of equity interests in the Company for any purpose.
Amendmentsand Waivers. Any term of this Note may be amended, terminated or waived only with the written consent of the Company and the Majority Investors. Any amendment or waiver effected in accordance with this Section shall be binding upon each of the Notes and each of the Investors and each transferee of the Notes and the Company.
Waiverof Notice, Protest and Demand. The Company hereby waives presentment for payment, notice of nonpayment, protest, notice of protest, and all other notices, filing of suit and diligence in collecting the amounts due under this Note and agrees to not require the Investor to first initiate any suit or exhaust its remedies against any other person or parties in order to enforce payment of this Note.
Titlesand Subtitles. The titles and subtitles used in this Note are used for convenience only and are not to be considered in construing or interpreting this Note.
GoverningLaw. This Note shall be governed by, and construed in accordance with, the laws of the State of Arizona, regardless of the laws that might otherwise govern under applicable principles of conflicts of law.
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| Convertible Promissory Note | Page 3 |
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IN WITNESS WHEREOF, the Company has caused this Note to be signed by its duly authorized officer and to be dated as of the date first written above.
| MOBIVITY HOLDINGS CORP. | |
|---|---|
| By: | |
| Bryce<br>Daniels | |
| President |
| Convertible Promissory Note | Signature Page |
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