NIMU 8-K
Non Invasive Monitoring Systems Inc /Fl/ (NIMU)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date
of report (Date of earliest event reported):
Non-Invasive Monitoring Systems, Inc.
(Exact Name of Registrant as Specified in Its Charter)
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(Address of Principal Executive Offices) (Zip Code)
(Registrant’s Telephone Number, Including Area Code)
N/A
(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 of each class | Trading Symbol(s) | Name on each exchange on which registered | ||
| None | N/A | N/A |
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.
See Item 2.03.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
Fifth Amendment to 2021 Frost Gamma Investments Trust Promissory Note
On September 29, 2026, Non-Invasive Monitoring Systems, Inc. (“NIMS”) entered into the Fifth Amendment to that certain Promissory Note dated October 4, 2021 in the principal amount of $75,000 with Frost Gamma Investments Trust (the “2021 Frost Gamma Note”), a trust controlled by Dr. Phillip Frost, a current director, which beneficially owns in excess of 10% of our common stock. The maturity date on the 2021 Frost Gamma Note was amended from September 30, 2026 until October 31, 2026. No other provisions of the 2021 Frost Gamma Note were amended.
The foregoing is only a brief summary of the Fifth Amendment to the 2021 Frost Gamma Note and does not purport to be complete. Please refer to the Fifth Amendment to the 2021 Frost Gamma Note, which is attached as Exhibit 10.1 for its full terms.
Fifth Amendment to 2021 Hsiao Promissory Note
On September 29, 2026, NIMS entered into the Fifth Amendment to that certain Promissory Note dated October 4, 2021 in the principal amount of $75,000 with Dr. Jane Hsiao (the “2021 Hsiao Note”), NIMS’ Chairman of the Board and Interim Chief Executive Officer and a beneficial owner in excess of 10% of our common stock. The maturity date on the 2021 Hsiao Note was amended from September 30, 2026 until October 31, 2026. No other provisions of the 2021 Hsiao Note were amended.
The foregoing is only a brief summary of the Fifth Amendment to the 2021 Hsiao Note and does not purport to be complete. Please refer to the Fifth Amendment to the 2021 Hsiao Note, which is attached as Exhibit 10.2 for its full terms.
Fifth Amendment to 2022 Frost Gamma Investments Trust Promissory Note
On September 29, 2026, NIMS entered into the Fifth Amendment to that certain Promissory Note dated September 16, 2022 in the principal amount of $75,000 with Frost Gamma Investments Trust (the “2022 Frost Gamma Note”), a trust controlled by Dr. Phillip Frost, a current director, which beneficially owns in excess of 10% of our common stock. The maturity date on the 2022 Frost Gamma Note was amended from September 30, 2026 until October 31, 2026. No other provisions of the 2022 Frost Gamma Note were amended.
The foregoing is only a brief summary of the Fifth Amendment to the 2022 Frost Gamma Note and does not purport to be complete. Please refer to the Fifth Amendment to the 2022 Frost Gamma Note, which is attached as Exhibit 10.3 for its full terms.
Fifth Amendment to 2022 Hsiao Promissory Note
On September 29, 2026, NIMS entered into the Fifth Amendment to that certain Promissory Note dated September 16, 2022 in the principal amount of $75,000 with Dr. Jane Hsiao (the “2022 Hsiao Note”), NIMS’ Chairman of the Board and Interim Chief Executive Officer and a beneficial owner in excess of 10% of our common stock. The maturity date on the 2022 Hsiao Note was amended from September 30, 2026 until October 31, 2026. No other provisions of the 2022 Hsiao Note were amended.
The foregoing is only a brief summary of the Fifth Amendment to the 2022 Hsiao Note and does not purport to be complete. Please refer to the Fifth Amendment to the 2022 Hsiao Note, which is attached as Exhibit 10.4 for its full terms.
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 hereunto duly authorized.
| Non-Invasive Monitoring Systems, Inc. | ||
| October 2, 2026 | By: | /s/ James J. Martin |
| Name: | James J. Martin | |
| Title: | Chief Financial Officer | |
Exhibit 2.1
AMENDMENT NO. 3 TO
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
AMENDMENT NO. 3 TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION (this “Amendment”), dated September 30, 2026, by and among Non-Invasive Monitoring Systems, Inc., a Florida corporation (the “Parent”), Gravitics Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of Parent (the “Acquisition Subsidiary”), and Gravitics, Inc., a Delaware corporation (the “Company”), pursuant to which the Acquisition Subsidiary will merge with and into the Company, with the Company continuing as the surviving corporation and a wholly owned subsidiary of the Parent.
WHEREAS, the Parties entered into the Agreement and Plan of Merger and Reorganization on May 6, 2026, which was previously amended on June 30, 2026 and August 5, 2026 (as amended, the “Merger Agreement”); and
WHEREAS, the Parties desire to further amend the Merger Agreement to extend the Outside Termination Date and modify certain covenants and closing conditions.
NOW, THEREFORE, the Parties, each intending to be legally bound hereby, do mutually covenant and agree as follows, subject to and effective as of the Effective Time (as defined below):
1. Capitalized words and terms not otherwise defined in this Amendment shall have the meaning ascribed to such words and terms set forth in the Merger Agreement.
2. Section 1.2 of the Merger Agreement is hereby amended and restated as follows:
“1.2 The Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place at the offices of Lucosky Brookman LLP, commencing at 10:00 a.m. local time on or before October 30, 2026, or on such other date that the Parties may mutually agree upon in writing, or, if all of the conditions to the obligations of the Parties to consummate the transactions contemplated hereby have not been satisfied or waived by such date, on such mutually agreeable later date as soon as practicable (and in any event not later than three (3) Business Days) after the satisfaction or waiver of all conditions (excluding the delivery of any documents to be delivered at the Closing by any of the Parties) set forth in Article V hereof (the “Closing Date”). As used in this Agreement, the term “Business Day” means any day other than a Saturday, a Sunday or a day on which banks in the state of New York are required or authorized by applicable Law to close.”
3. Section 4.16 of the Merger Agreement is hereby amended and restated as follows:
“4.16 Underwritten Public Offering and Uplisting. The Parent and the Company shall each use its Reasonable Best Efforts to consummate for the Post-Merger Parent (a) an underwriting public offering of $125.0 million (the “Public Offering”) and (b) a corresponding uplisting to Nasdaq, the NYSE, the NYSE American, or other national securities exchange (the “Uplisting”), each to be completed as soon as practicable after the Closing Date. For the avoidance of doubt, the Company will prepare, with input from the Parent, any Registration Statement, listing application for Nasdaq, the NYSE, the NYSE American, or other national securities exchange, and other documentation related to the Public Offering and Uplisting.”
4. The following provision is hereby added to the Merger Agreement as Section 4.22:
“4.22 Repayment of Outstanding Notes. An aggregate of $300,000 (plus accrued interest) of indebtedness owed to Dr. Philip Frost, or his Affiliate, and Dr. Jane Hsiao shall be repaid from the proceeds of the Public Offering.”
5. Sections 5.1(g), 5.2(b), 5.2(l) and 5.3(j) of the Merger Agreement are hereby deleted in their entirety and replaced with the following:
“[Reserved].”
The deletion of the foregoing Sections shall not affect the numbering of any other Section of the Merger Agreement, and all references in the Merger Agreement to any Section thereof shall continue to refer to such Section as numbered prior to giving effect to this Amendment.
5. Section 8.2 of the Merger Agreement is hereby amended and restated as follows:
“8.2 Termination for Failure to Close. This Agreement shall automatically be terminated if the Closing Date shall not have occurred by October 30, 2026, unless extended by the mutual written agreement of the Parties (the “Outside Termination Date”).”
6. In the event of any conflict between the Merger Agreement and this Amendment, the terms as contained in this Amendment shall control. Except as expressly modified by this Amendment, all other terms and conditions of the Merger Agreement shall remain in full force and effect and are hereby ratified and confirmed in all respects.
7. This Amendment may be executed in one or more counterparts, each of which shall be deemed to be one and the same agreement. Facsimile and electronic signatures shall be treated in all respects and for all purposes as originals.
[The remainder of this page is left blank intentionally. Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
| PARENT: | ||
| NON-INVASIVE MONITORING SYSTEMS, INC. | ||
| By: | /s/ James Martin | |
| Name: | James Martin | |
| Title: | Chief Financial Officer | |
| ACQUISITION SUBSIDIARY: | ||
| GRAVITICS MERGER SUB, INC. | ||
| By: | /s/ James Martin | |
| Name: | James Martin | |
| Title: | President | |
| COMPANY: | ||
| GRAVITICS, INC. | ||
| By: | /s/ Colin Doughan | |
| Name: | Colin Doughan | |
| Title: | Chief Executive Officer | |
Exhibit 10.1
fifth AMENDMENT TO Promissory note
THIS fifth Amendment (THE “FIFTH AMENDMENT”) DATED SEPTEMBER 29, 2026, shall amend the Promissory note dated AS OF OCTOBER 4, 2021 (THE “NOTE”) and amended on august 15, 2023 (THE “fIRST aMENDMENT”), jULY 25, 2025 (THE “SECOND AMENDMENT”), January 5, 2026 (the “Third amendment”) AND JUNE 30, 2026 (THE “FOURTH AMENDMENT”) AMONG NON-INVASIVE MONITORING SYSTEMS, INC. (THE “MAKER”) AND FROST GAMMA INVESTMENTS TRUST (THE “PAYEE”) AS NOTED BELOW.
RECITALS
WHEREAS, Maker and Payee (collectively, the “Parties”) are parties to the Note which became effective on October 4, 2021 and which was amended by the First Amendment, Second Amendment, Third Amendment and Fourth Amendment; and
WHEREAS, the Parties desire to amend the Note to extend the Maturity Date from September 30, 2026 until October 31, 2026.
NOW THEREFORE, in consideration of the mutual covenants and promises contained in the Note and this Fifth Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AMENDMENT
| 1. | Section 1 of the Note is hereby amended and restated in its entirety as follows: |
The principal amount of the loan evidenced hereby, together with any accrued and unpaid interest, and any and all unpaid costs, fees and expenses accrued, shall be due and payable on October 31, 2026 (the “Maturity Date”).
2. Governing Law. This Fifth Amendment shall be governed by the laws of the State of Florida without regard to its conflict of laws rules or principles.
3. Amendments. Except as expressly amended hereby, the Note, the First Amendment, Second Amendment, Third Amendment and Fourth Amendment shall remain unmodified and in full force and effect.
4. Entire Agreement. This Fifth Amendment, the Fourth Amendment, Third Amendment, the Second Amendment, the First Amendment and the Note constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior understandings and writings between the Parties relating thereto.
5. Interpretation. Any capitalized terms used in this Fifth Amendment but not otherwise defined shall have the meaning provided in the Note.
6. Counterparts. This Fifth Amendment may be executed manually, electronically in PDF file format, via an e-signature format, or by facsimile by the Parties, in any number of counterparts, each of which shall be considered one and the same amendment and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Party.
IN WITNESS WHEREOF, Borrower has duly executed this Fifth Amendment to the Note as of the 29th day of September, 2026.
NON-INVASIVE MONITORING SYSTEMS, INC.
| ||
| By: | /s/ James J. Martin | |
| Name: | James J. Martin | |
| Title: | Chief Financial Officer | |
| Agreed and Accepted: | ||
| FROST GAMMA INVESTMENTS TRUST | ||
|
By: |
/s/ Phillip Frost | |
| Name: | Phillip Frost, M.D. | |
| Title: | Trustee | |
Exhibit 10.2
fifth AMENDMENT TO Promissory note
THIS fifth Amendment (THE “FIFTH AMENDMENT”) DATED SEPTEMBER 29, 2026, shall amend the Promissory note dated AS OF OCTOBER 4, 2021 (THE “NOTE”) and amended on august 15, 2023 (THE “fIRST aMENDMENT”), jULY 25, 2025 (THE “SECOND AMENDMENT”), January 5, 2026 (the “Third amendment”) AND JUNE 30, 2026 (THE “FOURTH AMENDMENT”) AMONG NON-INVASIVE MONITORING SYSTEMS, INC. (THE “MAKER”) AND jane hsiao (THE “PAYEE”) AS NOTED BELOW.
RECITALS
WHEREAS, Maker and Payee (collectively, the “Parties”) are parties to the Note which became effective on October 4, 2021 and which was amended by the First Amendment, Second Amendment, Third Amendment and Fourth Amendment; and
WHEREAS, the Parties desire to amend the Note to extend the Maturity Date from September 30, 2026 until October 31, 2026.
NOW THEREFORE, in consideration of the mutual covenants and promises contained in the Note and this Fifth Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AMENDMENT
| 1. | Section 1 of the Note is hereby amended and restated in its entirety as follows: |
The principal amount of the loan evidenced hereby, together with any accrued and unpaid interest, and any and all unpaid costs, fees and expenses accrued, shall be due and payable on October 31, 2026 (the “Maturity Date”).
2. Governing Law. This Fifth Amendment shall be governed by the laws of the State of Florida without regard to its conflict of laws rules or principles.
3. Amendments. Except as expressly amended hereby, the Note, the First Amendment, Second Amendment, Third Amendment and Fourth Amendment shall remain unmodified and in full force and effect.
4. Entire Agreement. This Fifth Amendment, the Fourth Amendment, Third Amendment, the Second Amendment, the First Amendment and the Note constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior understandings and writings between the Parties relating thereto.
5. Interpretation. Any capitalized terms used in this Fifth Amendment but not otherwise defined shall have the meaning provided in the Note.
6. Counterparts. This Fifth Amendment may be executed manually, electronically in PDF file format, via an e-signature format, or by facsimile by the Parties, in any number of counterparts, each of which shall be considered one and the same amendment and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Party.
IN WITNESS WHEREOF, Borrower has duly executed this Fifth Amendment to the Note as of the 29th day of September, 2026.
| NON-INVASIVE MONITORING SYSTEMS, INC. | ||
| By: | /s/ James J. Martin | |
| Name: | James J. Martin | |
| Title: | Chief Financial Officer | |
| Agreed and Accepted: | ||
| By: | /s/ Jane Hsiao | |
| Name: | Jane Hsiao, Ph.D. | |
Exhibit 10.3
fifth AMENDMENT TO Promissory note
THIS fifth Amendment (THE “FIFTH AMENDMENT”) DATED SEPTEMBER 29, 2026, shall amend the Promissory note dated AS OF september 16, 2022 (THE “NOTE”) and amended on august 15, 2023 (THE “fIRST aMENDMENT”), jULY 25, 2025 (THE “SECOND AMENDMENT”), January 5, 2026 (the “Third amendment”) AND JUNE 30, 2026 (THE “FOURTH AMENDMENT”) AMONG NON-INVASIVE MONITORING SYSTEMS, INC. (THE “MAKER”) AND FROST GAMMA INVESTMENTS TRUST (THE “PAYEE”) AS NOTED BELOW.
RECITALS
WHEREAS, Maker and Payee (collectively, the “Parties”) are parties to the Note which became effective on September 16, 2022 and which was amended by the First Amendment, Second Amendment, Third Amendment and Fourth Amendment; and
WHEREAS, the Parties desire to amend the Note to extend the Maturity Date from September 30, 2026 until October 31, 2026.
NOW THEREFORE, in consideration of the mutual covenants and promises contained in the Note and this Fifth Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AMENDMENT
| 1. | Section 1 of the Note is hereby amended and restated in its entirety as follows: |
The principal amount of the loan evidenced hereby, together with any accrued and unpaid interest, and any and all unpaid costs, fees and expenses accrued, shall be due and payable on October 31, 2026 (the “Maturity Date”).
2. Governing Law. This Fifth Amendment shall be governed by the laws of the State of Florida without regard to its conflict of laws rules or principles.
3. Amendments. Except as expressly amended hereby, the Note, the First Amendment, Second Amendment, Third Amendment and Fourth Amendment shall remain unmodified and in full force and effect.
4. Entire Agreement. This Fifth Amendment, the Fourth Amendment, Third Amendment, the Second Amendment, the First Amendment and the Note constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior understandings and writings between the Parties relating thereto.
5. Interpretation. Any capitalized terms used in this Fifth Amendment but not otherwise defined shall have the meaning provided in the Note.
6. Counterparts. This Fifth Amendment may be executed manually, electronically in PDF file format, via an e-signature format, or by facsimile by the Parties, in any number of counterparts, each of which shall be considered one and the same amendment and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Party.
IN WITNESS WHEREOF, Borrower has duly executed this Fifth Amendment to the Note as of the 29th day of September, 2026.
NON-INVASIVE MONITORING SYSTEMS, INC.
| ||
By: |
/s/ James J. Martin | |
Name: |
James J. Martin | |
Title: |
Chief Financial Officer | |
| Agreed and Accepted: | ||
| FROST GAMMA INVESTMENTS TRUST | ||
|
By: |
/s/ Phillip Frost |
|
| Name: | Phillip Frost, M.D. |
|
| Title: | Trustee |
|
Exhibit 10.4
fifth AMENDMENT TO Promissory note
THIS fifth Amendment (THE “FIFTH AMENDMENT”) DATED SEPTEMBER 29, 2026, shall amend the Promissory note dated AS OF september 16, 2022 (THE “NOTE”) and amended on august 15, 2023 (THE “fIRST aMENDMENT”), jULY 25, 2025 (THE “SECOND AMENDMENT”), January 5, 2026 (the “Third amendment”) AND JUNE 30, 2026 (THE “FOURTH AMENDMENT”) AMONG NON-INVASIVE MONITORING SYSTEMS, INC. (THE “MAKER”) AND jane hsiao (THE “PAYEE”) AS NOTED BELOW.
RECITALS
WHEREAS, Maker and Payee (collectively, the “Parties”) are parties to the Note which became effective on September 16, 2022 and which was amended by the First Amendment, Second Amendment, Third Amendment and Fourth Amendment; and
WHEREAS, the Parties desire to amend the Note to extend the Maturity Date from September 30, 2026 until October 31, 2026.
NOW THEREFORE, in consideration of the mutual covenants and promises contained in the Note and this Fifth Amendment and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AMENDMENT
| 1. | Section 1 of the Note is hereby amended and restated in its entirety as follows: |
The principal amount of the loan evidenced hereby, together with any accrued and unpaid interest, and any and all unpaid costs, fees and expenses accrued, shall be due and payable on October 31, 2026 (the “Maturity Date”).
2. Governing Law. This Fifth Amendment shall be governed by the laws of the State of Florida without regard to its conflict of laws rules or principles.
3. Amendments. Except as expressly amended hereby, the Note, the First Amendment, Second Amendment, Third Amendment and Fourth Amendment shall remain unmodified and in full force and effect.
4. Entire Agreement. This Fifth Amendment, the Fourth Amendment, Third Amendment, the Second Amendment, the First Amendment and the Note constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior understandings and writings between the Parties relating thereto.
5. Interpretation. Any capitalized terms used in this Fifth Amendment but not otherwise defined shall have the meaning provided in the Note.
6. Counterparts. This Fifth Amendment may be executed manually, electronically in PDF file format, via an e-signature format, or by facsimile by the Parties, in any number of counterparts, each of which shall be considered one and the same amendment and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Party.
IN WITNESS WHEREOF, Borrower has duly executed this Fifth Amendment to the Note as of the 29th day of September, 2026.
NON-INVASIVE MONITORING SYSTEMS, INC.
| ||
| By: | /s/ James J. Martin | |
| Name: | James J. Martin | |
| Title: | Chief Financial Officer | |
| Agreed and Accepted: | ||
| By: | /s/ Jane Hsiao | |
| Name: | Jane Hsiao, Ph.D. | |
Exhibit 10.5
AMENDMENT NO. 1 TO CONVERTIBLE NOTE
This Amendment No. 1 to Convertible Note (this “Amendment”) is entered into as of September 30, 2026, by and between Non-Invasive Monitoring Systems, Inc., a Florida corporation (the “Maker”), and Defender Opportunity LLC, a Delaware limited liability company (the “Holder”).
RECITALS
A. The Maker issued to the Holder a Convertible Note in the principal amount of $809,705.75 (the “Note”) under a Note Purchase Agreement between the Maker and the Holder dated as of June 24, 2026 (the “Purchase Agreement”).
B. Section 2 and Section 5(b) of the Note refer to the Merger (as defined in the Note) being consummated on or before September 30, 2026.
C. In consideration of the payment described in Section 2 below, the Maker and the Holder wish to amend the Note to extend that date to October 30, 2026, as set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized words and terms not otherwise defined in this Amendment shall have the meaning ascribed to such words and terms set forth in the Note.
2. Amendments to the Note.
(a) The last sentence of Section 2 of the Note is amended by replacing “September 30, 2026” with “October 30, 2026,” so that it reads:
“Notwithstanding anything herein to the contrary, no interest shall be payable upon Conversion of this Note if the Merger is consummated on or before October 30, 2026.”
(b) The second sentence of Section 5(b) of the Note is amended by replacing “September 30, 2026” with “October 30, 2026,” so that it reads:
“Provided that the Merger is consummated on or before October 30, 2026, this Note shall convert into the Conversion Shares immediately upon the closing of the Merger without the payment of any interest; provided that the number of shares of Common Stock issued to the stockholders of Gravitics, Inc. in the Merger shall assume the consummation of the Conversion prior to such closing.”
2. Extension Fee. In consideration of the Holder’s agreement to this Amendment, the Maker shall pay the Holder $25,000 in cash (the “Extension Fee”) by wire transfer of immediately available funds to an account the Holder designates in writing, within three (3) business days after the date of this Amendment. The Extension Fee is fully earned on execution of this Amendment and is non-refundable. It will not reduce the principal of the Note or any amount payable under it, and it will not be applied against them. Any failure to pay the Extension Fee when due will be subject to Section 9(a) of the Note.
3. Effectiveness. This Amendment takes effect when each of the Maker and the Holder has executed and delivered it. Effectiveness does not depend on payment of the Extension Fee.
4. No Other Changes; References. Except as expressly amended by this Amendment, the Note and the Purchase Agreement remain unchanged and in full force and effect, and are ratified and confirmed. From and after the effectiveness of this Amendment, each reference to the Note in the Note, the Purchase Agreement or any related document means the Note as amended by this Amendment. Nothing in this Amendment waives any right or remedy under the Note or the Purchase Agreement, except as expressly set forth in Section 1.
5. Representations. Each party represents that it has duly authorized, executed and delivered this Amendment, and that this Amendment is its valid and binding obligation, enforceable against it in accordance with its terms. The Holder represents that it is the sole holder of the Note and has not assigned or transferred the Note or any interest in it.
6. Miscellaneous. Sections 10 (Governing Law; Exclusive Jurisdiction) and 12 (Severability) of the Note apply to this Amendment mutatis mutandis. This Amendment may be executed in counterparts, each of which is deemed an original, and all of which together constitute one instrument. Signatures delivered by facsimile, .pdf or other electronic transmission are deemed original signatures.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
| NON-INVASIVE MONITORING SYSTEMS, INC. | ||
| By: | /s/ James J. Martin | |
| Name: | James J. Martin | |
| Title: | Chief Financial Officer | |
| DEFENDER OPPORTUNITY LLC | ||
| By: | /s/ James Manning | |
| Name: | James Manning | |
| Title: | Managing Member | |