展品10.1
執行副本
這份可轉換的票據或者這份票據轉換得到的普通股尚未根據1933年修訂版的《證券法》或任何適用的州證券法登記。這些證券是爲投資目的而取得的，並且在沒有發行人向美國證券交易委員會提交覆蓋這些證券的有效註冊聲明或律師意見令發行人滿意，這些證券就不能在沒有註冊後進行出售、出售後交付、轉讓、抵押或設定抵押權。購買權
修訂和重新規定 可轉換的本票
2024年10月23日
| $5,209,764.00 | Tampa, FL |
沒有。LTCN-1
本修訂和重訂可轉讓票據（以下簡稱「本票據」）由AtlasClear Holdings, Inc.（以下簡稱「發行人」）單張債券”之間達成。處置以及聯合任何加入此處的關聯公司或各方（以下簡稱「各方」）發行人”，一家特拉華州的公司，以及 Chardan Capital Markets, LLC（以下簡稱「資本市場」持有人”), and is effective as of October 23, 2024.
鑑於發行人先前發行給持有人的可轉讓本票，日期爲2024年2月9日（“原始票據”），原始本金金額爲$4,150,000.00。
鑑此，發行人和持有人希望在此完全修訂和重新規定原始票據。
爲獲得等值對價，發行人與任何相關聯方或加入本協議的相關方一致並分別，無條件地承諾支付給Chardan資本市場有限責任公司，在持有人辦公地址紐約紐約州10119號4800套房的位置，或者持有人不時以書面形式指定給發行人的其他地點，在美利堅合衆國合法貨幣和立即可用的資金或證券（與本協議條款一致），本金五百零九萬七千七百六十四美元（$5,209,764.00）。
根據第2節關於本票的提前償還或第3節關於本票轉換的規定，本票的全部本金應於2028年2月9日到期支付（“到期日”）。在對本票下的應付款項進行全額償還（無論根據第2節、第3節或其他方式），持有人將向公司的過戶代理執行併發出通知，確認在過戶代理指示函中規定的有關可取消轉換股份的指示已經生效。
第一部分。定義。
“有益所有權限制。「」應具有第3(d)節中規定的含義。
“買入“應具有第3(c)(v)節規定的含義。
“轉換「」應具有第3(a)條中規定的含義。
“轉換日期「」應按照第3(a)條的規定進行解釋。
“轉換價格「」應按照第3(b)節的規定進行解釋。
| 修正和重新規定的可轉讓高級可轉換借據 | 頁面 1 |
執行文本
“Conversion Shares” 表示根據本票據規定，在此規定下可以轉換成的普通股的股份。
“普通認股權證將可以選擇全部或部分行使，通過提交經過充分執行的行使通知書，並全額支付所購買的普通股的數量，以行使任何部分權證（在討論下面的無現金行使的情況下）。在持有者（連同其附屬公司）行使任何部分認股權證時，如果持有者在持有普通股權證後擁有的我們普通股的總股數超過4.99%（或者在購買者的選擇下爲9.99%），則不能行使對應於持有者認股權證部分的任何部分權利，除非在發行普通股權證之前，持有者可以選擇增加行使持有者普通股認股權證之後的持有普通股的數量，使其達到排除執行普通股認股權證的股票數的9.99%的數量，如按照普通認股權證的條款確定的，以購買行使之後立即發行的普通股的數量。「」應根據第4（b）節中的規定進行解釋。
“股票稀釋發行通知「」應按照第4(b)節的規定進行解釋。
“權益條件在所涉時期內，第(a)項，發行人應按照任何持有人的一個或多個轉換通知正當地兌現或完成安排好的轉換和贖回，如果有的話，第(b)項，發行人應支付所有本票應付給持有人的違約金和其他款項，第(c)(i)項，存在有效的註冊聲明，憑此持有人被允許使用概要書進行所有根據交易文件應付的普通股的轉售（發行人善意地相信這種有效性將在可預見的未來持續不間斷）或(ii)交易文件應付的所有轉換股可按照144條規則進行轉售，無需成交量或銷售方式限制或當前公開信息要求，由發行人的律師確定，第(d)項，普通股在交易市場交易，根據交付文件應付的所有股份都在這樣的交易市場上市或報價交易（發行人善意地相信普通股在交易市場上的交易將在接下來的五（5）個交易日持續不間斷），第(e)項，已授權但未發行的普通股數量足夠發行所有交易文件中應發行的股份，第(f)項，向持有人發行所涉股份不會違反本說明的第3(d)和第3(e)節中規定的限制，第(g)項，沒有公開宣佈進行中的或擬議的基礎交易或股權交易，且尚未完成，第(h)項，持有人未持有由發行人、其子公司或其董事、高級管理人員、僱員、代理人或關聯公司提供的任何構成或可能構成的重要非公開信息，第(i)項，截至該確定日期，沒有發生任何成交量失敗，第(j)項，沒有發生任何違約事件，除非持有人同意。
“違約事件「」在第6(a)節中有所指。
“豁免發行“ 意味着發行（a）公司普通股或期權給該發行人的員工、高級職員或董事，根據該目的專門制定的任何股票 或期權計劃，由董事會中非僱員成員多數或成立用於此類目的的非僱員董事委員會的成員多數根據向發行人提供的服務，“ （b） 通過行使或交換此處發行的證券或任何證券的轉換及/或其他可行使或可兌換 用於或轉換爲本協議簽訂日期當天已經發行並正在流通的普通股的證券 （包括，毫無疑問，在向纜車基金、LP發行的日期與本發行人簽署的某一特定的擔保可轉讓票據的轉換）; 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時； 此類證券自本協議簽署日期以來未經修正，增加此類證券的數量或降低行使價格、交換價格或轉換價格（與拆股並股有關除外）或延長此類證券期限； (c) 董事會中半數以上無利害關係的董事批准的收購或戰略交易發行的證券; 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時； 任何此類發行僅限於對一個人（或其子公司）發行，該人自身或通過其子公司爲實體發行人或資產所有者，併爲發行人提供除了資金投資外的額外利益，但不得包括髮行證券主要爲了籌資或發行給其主要業務是投資證券的實體的交易；（d）普通股或可行使或可交換或可轉換爲普通股的證券數額總計不超過1,000,000美元（不包括任何可轉換票據，包括此票據（“票據 ”）或購買協議下發行的認股權證之後的購買協議日期； 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時； 就本條款(d)而言，每股普通股或有價證券在發行時的發行、轉換或行使（視情況而定）價格大於每股普通股的1.00美元（根據後續日期發生的拆股並股、送轉、股票組合、資本重組或其他類似交易進行調整），以及(e)根據購買協議發行票據和權證以及作爲票據和權證基礎的普通股。
| 修正和重新規定的可轉讓高級可轉換借據 | 頁面 2 |
執行文本
“基本交易「」應按照第4(d)條的規定解釋。
“可發行最大數「」應按照第3(e)條的規定進行解釋。
“轉換通知「」應按照第3(a)條的規定進行解釋。
“持有”或“人員。「」 意味着任何個人、公司、合夥企業、有限責任公司、合資企業、協會、 股份有限公司、信託、非法人組織或政府或其他代理人或政治分支機構。
“蘋果公司CEO庫克大規模拋售股票，套現逾3億港元，資金已存入上市公司設立的專項帳戶(「信託帳戶」)，以公共股東(定義詳見下文)爲受益人的註冊聲明(FORM S-1)中所規定的一定金額及特定款項。信託帳戶中持有的基金類型(包括資金持有的利息)除支付公司稅費以外，一旦實現以下最早的情況之一即可支取: (i) 完成首次（業務）組合；(ii) 如果公司未能在2025年3月3日之前完成首次（業務）組合，則可以贖回100%的發行股份（如下所述）；或 (iii) 股東表決贖回發行股份。 若要批准修訂本Amended and Restated Certificate，必須就修訂對決定最早如下情形之一的公司的義務以在首次業務組合中允許贖回或未在終止日期之前完成首次業務組合即贖回100%的發行股份產生影響或涉及股東權益或首次業務組合前的活動（如第9.7節所述），對修訂進行表決。發售期(「發售期」)所出售單位的組成部分的Common Stock股份的持有人(「發售股份」)，不論這些發售股份是在發售期內還是在發售市場上的二級市場中購買，也不論這些持有人是公司的發起人，高管或董事，或上述任何關聯方的子公司，均在此被稱爲「公共股東」。” 表示每位持有人持有的基礎股票的轉讓聲明。
“股票交付日期「」應按照第3(c)(ii)條規定理解。
“交易日“ 表示任何日，公司股票在主要證券交易所或其他證券市場或場外交易的公告板上進行任何時期的交易。在那時進行交易的是公司股票。
“交易市場” 表示在問題日期上，普通股所在的上市或交易市場或交易所，包括美國紐約證券交易所，納斯達克資本市場，納斯達克全球市場，納斯達克全球精選市場，紐約證券交易所（或其任何前述繼任者）。
“成交量失敗對於特定確定日期，指在Common 股票的主要交易市場上在結束於確定日期的之前的七（7）個交易日的交易日結束當天，Common 股票的平均美元交易成交量（根據彭博社報告）低於$1,500,000（根據任何拆股並股、送轉、股票組合、資本重組或其他類似交易經過本日之後進行的調整）。
“「VWAP」表示任何日期上任何證券的美元成交量加權平均價格，在納斯達克資本市場（或如果納斯達克資本市場不是該證券的主要交易市場，那麼在該證券的主要證券交易所或證券市場上，在該證券上從美國東部時間上午9:30開始，到美國東部時間下午4:00結束，在該證券上由彭博社通過其「VAP」功能報告的美元成交量加權平均價格(設置爲9:30開始時間和16:00結束時間)；如果上述情況不適用，則爲在該證券的場外市場上，該證券的電子公告板在美國東部時間上午9:30開始，到美國東部時間下午4:00，在彭博社報告的美元成交量加權平均價格，或者如果沒有任何市場商報告該證券的美元成交量加權平均價格，則該證券市場製造商的最高收盤買入價與最低收盤賣出價的平均值從The Pink Open Market（或類似的機構或代理機構繼承其報告價格的功能）或其他方式獲得。如果無法計算該日期上該安全的VWAP，則該日期上該安全的VWAP將是我們和債券持有人共同確定的公平市場價值。如果我們和債券持有人無法就該證券的公平市場價值達成一致意見，那麼這種爭議應根據條款中規定的程序解決。對於所有這些決定應適當調整任何股票股利、股票分割、股票組合、資本重組或其他類似交易的加權平均價格。”表示，對於任何交易日，普通股的每股成交量加權平均價格是由Bloomberg通過其「VAP」功能報告的，在從交易開市直到主要交易時段預定收市時段結束的期間內，關於該交易日的（或者如果該成交量加權平均價格不可得，由公司委託一傢俱有國家認可的獨立投資銀行認定的用於此目的的市場價值一股普通股的交易日確定的成交量加權平均方法，不考慮盤後交易或主要交易時段之外的其他任何交易。
第2部分。預付款。
| (a) | 現金預付款儘管本合同另有規定，發行人可以全額或部分以現金形式在到期日之前任何時間自行決定提前償還本票的未償還本金。 |
| i. | 如果發行人選擇在2025年9月30日或之前預付任何本票的未償本金的金額，則此類預付款（除非發生且持續發生違約事件）應使本票的未償本金減少，每預付1美元減少2美元。 |
| ii. | 如果發行人選擇在2025年9月30日之後但到期日之前償還本票的任何金額，則此類提前償還（除非發生持續的違約事件）將使本票的未償本金金額每2美元預付3美元。 |
| 修正和重新規定的可轉讓高級可轉換借據 | 頁面 3 |
執行 複製
| iii. | 爲避免疑義，本第2.a節的上述條款不適用於發行人在到期日後支付本票的未償本金金額。 |
| (b) | 預付款程序。 如果發行人選擇根據上述第2(a)條款提前償還票據的任何金額，則在提前支付之前至少提前兩（2）個交易日，發行人將以書面形式向持有人發送預付款通知。該通知應包括預付款金額、發行人的匯款信息以及預付款將完成的日期。任何預付款的電匯說明將包括一個指示（例如「由ATCH提前支付」），表明該預付款與根據本票據的預付款有關。 |
第3節 轉換。
| (a) | 自願轉換。持有人可以選擇將本金和應計利息全部或部分按當時適用的轉換價尋計算的公司普通股數進行轉換，根據情況進行調整。在本次之後的任何時間，直到本票據不再未償期內，持有人可選擇將本票據全部或部分轉換爲普通股，無論何時及多少次（受第三點(d)和第三點(e)的轉換限制）。請在轉換通知書中指定本票據的本金金額和轉換日期，如果未指定轉換日期，則轉換日期應爲視爲送達的轉換通知書送達日期。不需要提交墨水原件的轉換通知書，也不需要提交任何保證書（或其他形式的擔保或公證書）。進行本轉換時，持有人無需將本票據實際交還給發行人，除非已將本票據的全部本金金額轉換，如果是這種情況，持有人應在轉換後儘快但不延遲發行人在股票交付日期交付股票的義務。此類轉換將使本票據的未償本金金額減少等同於適用的轉換金額。發行人和持有人應保留顯示轉換的本金金額和轉換日期的記錄。發行人可在收到轉換通知書後的一個（1）工作日內對任何轉換通知書提出異議。轉換持有人將通過交付轉換通知書來進行轉換，附表A中包含轉換通知書的格式。如果轉換通知書中未指定轉換日期，則轉換日期應爲視爲送達的轉換通知書送達日期。不需要提交墨水原件的轉換通知書，也不需要提交任何保證書（或其他形式的擔保或公證書）。進行本轉換時，持有人無需將本票據實際交還給發行人，除非已將本票據的全部本金金額轉換，如果是這種情況，持有人應在轉換後儘快但不延遲發行人在股票交付日期交付股票的義務。此類轉換將使本票據的未償本金金額減少等同於適用的轉換金額。發行人和持有人應保留顯示轉換的本金金額和轉換日期的記錄。發行人可在收到轉換通知書後的一個（1）工作日內對任何轉換通知書提出異議。轉換通知轉換日期”。如果在轉換通知書中未指定轉換日期，則轉換日期應爲視爲送達的轉換通知書送達日期。轉換日期轉換日期”。如果在轉換通知書中未指定轉換日期，則轉換日期應爲視爲送達的轉換通知書送達日期。 持有人和任何接受本票據的受讓人應知悉並同意，在本段規定的情況下，本票據的一部分轉換後，本票據的未支付和未轉換的本金金額可能低於此票面金額。 |
| (b) | 轉換價格計算。在任何轉換日期生效的轉換價格應等於普通股前一個交易日VWAP的95%，但根據本文所述進行調整（“轉換價格”). |
| (c) | Mechanics of Conversion. |
| i. | Conversion Shares Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing the outstanding principal amount of this Note to be converted by the Conversion Price. |
| ii. | Delivery of Conversion Shares Upon Conversion. Not later than one (1) Trading Day after each Conversion Date (the “Share Delivery Date”), the Issuer shall deliver, or cause to be delivered, to the Holder the Conversion Shares which shall be free of restrictive legends and trading restrictions representing the number of Conversion Shares being acquired upon the conversion of this Note. The Issuer shall deliver any Conversion Shares required to be delivered by the Issuer under this Section 3 electronically through the Depository Trust Company or another established clearing corporation performing similar functions. |
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| iii. | Rescission Rights on Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed by the Holder by the 2dd Trading Day following the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Issuer at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Issuer shall promptly return to the Holder any original Note delivered to the Issuer and the Holder shall promptly return to the Issuer any Conversion Shares issued to such Holder pursuant to the rescinded Conversion Notice. |
| iv. | Obligation Absolute; Partial Liquidated Damages. The Issuer’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Issuer other than the terms hereof, and irrespective of any other circumstance (other than a violation of law) which might otherwise limit such obligation of the Issuer to the Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Issuer of any such action the Issuer may have against the Holder. In the event the Holder of this Note shall elect to convert any or all of the outstanding principal amount hereof in accordance with the terms hereof, the Issuer may not refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of any other agreement or for any other reason (other than a violation of law), unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note shall have been sought and obtained. In the absence of such injunction, the Issuer shall issue Conversion Shares upon a properly noticed conversion. Subject to the last sentence of this Section 3(c)(iv), if the Issuer fails for any reason to deliver to the Holder such Conversion Shares pursuant to Section 3(c)(ii) by the 2nd Trading Day following the Share Delivery Date, the Issuer shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $50 per Trading Day for each Trading Day after such 2nd Trading Day following the Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion; provided, for the avoidance of doubt, that nothing under this Section 3(c)(iv) shall supersede or be in place of the compensation provided for Buy- In as set forth in Section 3(c)(v). In the absence of an Event of Default, the partial liquidation damages contemplated by the preceding sentence will not accrue for delays in delivery of the Conversion Shares that occur notwithstanding the Issuer’s full compliance with its obligations pursuant to Section 3 (“Transfer Agent Instruction Letter”) of the Settlement Agreement (as such term is defined below in Section 6(a)(iii) of this Note). |
| v. | Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder, if the Issuer fails for any reason to deliver to the Holder such Conversion Shares by the 2nd Trading Day following the Share Delivery Date pursuant to Section 3(c)(ii), and if after such 2nd Trading Day following the Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such 2nd Trading Day following the Share Delivery Date (a “Buy- In”), then the Issuer shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed and (B) at the option of the Holder, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Issuer had timely complied with its delivery requirements under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Issuer shall be required to pay the Holder $1,000. The Holder shall provide the Issuer written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Issuer, evidence of the amount of such loss. |
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| vi. | Reservation of Shares Issuable Upon Conversion. The Issuer covenants that it will at all times (after receipt of necessary shareholder approval) reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of this Note as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder, not less than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments and restrictions of Sections 3(d) and (e)) upon the conversion of the then outstanding principal amount of this Note, which initial amount shall not be less than 19,782,309 shares of Common Stock, and which amount shall be increased to be not less than 39,282,309 shares upon receipt by the Issuer of shareholder approval to increase the number of authorized shares under the Issuer’s Amended and Restated Certificate of Incorporation.. The Issuer covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if the Registration Statement is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement. |
| vii. | Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Issuer shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share. |
| viii. | Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Note shall be made without charge to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares; provided that the Issuer shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holder of this Note so converted and the Issuer shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Issuer the amount of such tax or shall have established to the satisfaction of the Issuer that such tax has been paid. The Issuer shall pay all transfer agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares. |
| ix. | Summary of Conversion Notices. The Holder agrees to deliver a notice to the Issuer, within one (1) week of the end of each calendar month, a summary of Conversion Notices delivered by Holder during the prior calendar month. Such summary shall set forth either: (a) an indication that there have been no Conversion Notices delivered by Holder during the prior calendar month or (b) if there have been any Conversion Notice(s) delivered by Holder during the prior calendar month, a summary of: (1) the outstanding principal amount of this Note at the beginning of the current calendar month, (2) a list of Conversion Notices setting forth for each Conversion Notice, the amount of outstanding principal amount of the Note being converted, the Conversion Date, the Share Delivery Date and the Conversion Shares set forth in such Conversion Notice, the date of actual delivery and the number of Conversion Shares actually delivered, and (3) the total outstanding principal amount of this Note reduced by the total Conversion Notices delivered during the prior calendar month and the total number of Conversion Shares actually delivered for the prior calendar month. Notwithstanding the foregoing, the failure to deliver such summary shall in no way impair the Holder’s rights under this Note, including with respect to its conversion rights or right to repayment. |
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| (d) | Holder’s Conversion Limitations. The Issuer shall not effect any conversion of this Note, and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, 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 (such Persons, “Attribution Parties”)) 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 and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note 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) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Issuer subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 3(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 3(d) applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the reasonable discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Issuer shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 3(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Issuer’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Issuer, or (C) a more recent written notice by the Issuer or the Issuer’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Issuer shall within two (2) Trading Days confirm orally and in writing 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 Issuer, including this Note, 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 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note. The Holder, upon notice to the Issuer, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 3(d); provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 3(d) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Issuer. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The preceding limitations contained in this paragraph shall apply to a successor holder of this Note. Holder shall not vote or control the vote of shares of Common Stock of the Issuer in excess of 9.99% of the number of shares of Common Stock of the Issuer outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note (the “Vote Threshold”); provided that Issuer acknowledges and agrees that Holder may own in excess of the Vote Threshold; provided that Holder has irrevocably transferred to a non-affiliated U.S. entity voting rights of all shares of Common Stock of Issuer in excess of such Vote Threshold. |
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| (e) | Issuance Limitations. Notwithstanding anything herein to the contrary, if the Issuer has not obtained the necessary shareholder approval or any other viable exception pursuant to Sections 312 and 314 and any other applicable rules regarding the issuance of securities pursuant to the New York Stock Exchange Listed Company Manual (the “Applicable Exchange Rules”) for the issuance of the Common Stock underlying the Notes, then the Issuer may not issue, upon conversion of this Note, a number of shares of Common Stock which, when aggregated with any shares of Common Stock issued on or after the date hereof and prior to such Conversion Date in connection with the conversion of this Note issued pursuant to the Purchase Agreement would exceed 19.99% of the total outstanding shares of the Issuer’s Common Stock outstanding as of such Conversion Date (subject to adjustment for forward and reverse stock splits, recapitalizations and the like) (such number of shares, the “Issuable Maximum”). However, for the avoidance of doubt, the Issuer shall use its reasonable best efforts to obtain any such shareholder approval or obtain any other viable exception pursuant to the Applicable Exchange Rules. |
Section 4. Certain Adjustments.
| (a) | Stock Dividends and Stock Splits. If the Issuer, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Issuer upon conversion of the Note), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Issuer, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Issuer) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification. |
| (b) | Subsequent Equity Sales. If, at any time while this Note is outstanding, the Issuer or any Subsidiary, as applicable, sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues (or announces any sale, grant or any option to purchase or other disposition), any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock at an effective price per share that is lower than the then Conversion Price (such issuances, collectively, a “Dilutive Issuance” and such effective price, the “Base Price”)) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance the Conversion Price shall be reduced to equal the Base Price. Notwithstanding the foregoing, no adjustment will be made under this Section 4(b) in respect of an Exempt Issuance or an adjustment under Section 4(a). The Issuer shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 4(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Issuer provides a Dilutive Issuance Notice pursuant to this Section 4(b), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Conversion Shares based upon the adjusted Conversion Price on or after the date of such Dilutive Issuance, regardless of whether the Holder accurately refers to the adjusted Conversion Price in the Notice of Conversion. |
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| (c) | Voluntary Adjustment. Subject to the rules and regulations of the principal Trading Market of the Common Stock, the Issuer may at any time during the term of this Note, with the prior written consent of the Holder, reduce the then current Conversion Price of this Note to any amount and for any period of time deemed appropriate by the board of directors of the Issuer. |
| (d) | Fundamental Transaction. If, at any time while this Note is outstanding, (i) the Issuer, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Issuer with or into another Person, (ii) the Issuer (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Issuer or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of more than 50% of the outstanding Common Stock, (iv) the Issuer, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization 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, or (v) the Issuer, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 3(d) or Section 3(e) on the conversion of this Note), the consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 3(d) or Section 3(e) on the conversion of this Note). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Issuer shall apportion the Conversion 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 conversion of this Note following such Fundamental Transaction. |
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| (e) | Calculations. All calculations under this Section 4 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 4, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Issuer) issued and outstanding. |
| (f) | Notice to the Holder. |
| i. | Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 4, the Issuer shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. |
| ii. | Notice to Allow Conversion by Holder. If (A) the Issuer shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Issuer shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Issuer shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Issuer shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Issuer(and all of its Subsidiaries, taken as a whole) is a party, any sale or transfer of all or substantially all of the assets of the Issuer, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Issuer shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Issuer, then, in each case, the Issuer shall cause to be filed at each office or agency maintained for the purpose of conversion of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear in the records of the Issuer regarding registration and transfers of this Note, at least fifteen (15) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to convert this Note during the 15-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein. |
| 6. | Events of Default. |
| (a) | Definitions and Effect. In case one or more of the following “Events of Default” shall have occurred and be continuing: |
| (i) | default in the payment of any amount due under this Note, and continuance of such default for a period of five (5) days; |
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| (ii) | default in the performance of any covenant or agreement contained in this Note (other than as set forth in clause (i) of this Section 5.1) or any other of the Issuers’ debt or equity instruments, and such default is not fully cured within seven (7) days after the Holder delivers written notice to the Company of the occurrence thereof; |
| (iii) | material breach of the Settlement Agreement and Mutual Release (the “Settlement Agreement”) executed as of the date hereof by the Issuer, Quantum Fintech Acquisition Corporation, Chardan Capital Markets LLC and Chardan Quantum, LLC, or of any of the Ancillary Agreements (as such term is defined in the Settlement Agreement), that is not fully cured within seven (7) days after the Holder delivers written notice to the Company of the occurrence thereof; |
| (iv) | the Company’s failure to obtain, no later than December 31, 2025, the Shareholder Approval (as such term is defined in the Settlement Agreement) in accordance with the requirements of the Settlement Agreement; |
| (v) | the Company shall have admitted its inability to pay its debts as they mature, or upon a review of the Company’s financials a reasonable investor could conclude that the Company had an inability to pay its debts; |
| (vi) | the Company shall have made an assignment for the benefit of creditors, or shall have been adjudicated bankrupt; |
| (vii) | a trustee or receiver of the Company, or of any substantial part of the assets of the Company, shall have been appointed and, if appointed in a proceeding brought against the Company, the Company by any action or failure to act shall have indicated its approval of, consent to or acquiescence in such appointment, or, within sixty (60) days after such appointment, such appointment shall not have been vacated, or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect; |
| (viii) | proceedings involving the Company shall have been commenced by or against the Company under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law or statute of the federal government, or any state government, and, if such proceedings shall have been instituted against the Company, or the Company by any action or failure to act shall have indicated its approval of, consent to, or acquiescence therein, or an order shall have been entered approving the petition in such proceedings, and within sixty (60) days after the entry thereof, such order shall not have been vacated or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect; or |
| (ix) | a Fundamental Transaction shall have occurred and the terms of Section 4(d) were not met; |
then and in each and every such case, the Holders of a majority in aggregate principal amount of this Note may declare the then outstanding principal amount to be due and payable immediately, by written notice to the Company, and upon any such declaration the same shall become and shall be immediately due and payable in cash, unless so the Holder alternatively gives consent to a receipt of Common Stock. At any time after such declaration of acceleration has been made, and before a judgment or decree for payment of money due has been obtained, the holders of a majority in aggregate principal amount of this Note may, by written notice to the Company, rescind and annul such declaration.
| (b) | Waiver. At any time before the date of any declaration accelerating the maturity of this Note, the holders of a majority in aggregate principal amount of then-outstanding Notes may waive any Event of Default hereunder. Such waivers shall be evidenced by written notice or other document specifying the Event(s) of Default being waived and shall be binding on all existing or subsequent holders of outstanding Notes. |
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Presentment, demand, protest and notice of presentment, demand, nonpayment and protest are each hereby waived by each Issuer.
Notwithstanding anything to the contrary, at no time shall Holder (a) be given rights that would allow it to control Issuer; (b) have access to any material nonpublic technical information in the possession of Issuer; (c) have the right to appoint any member or observer to the board of directors of Issuer; or (d) be involved, other than through voting of shares, in the Issuer’s substantive decision-making regarding (i) the use, development, acquisition, safekeeping, or release of sensitive personal data of U.S. citizens that the Issuer maintains or collects; (ii) the use, development, acquisition, or release of critical technologies; or (iii) the management, operation, manufacture, or supply of covered investment critical infrastructure, to the extent Issuer at any time owns, operates, provides goods or service, or otherwise becomes involved in covered investment critical infrastructure. The terms in this paragraph are defined as they are defined in Section 721 of the U.S. Defense Production Act of 1950, as amended, and the regulations at 31 C.F.R Part 800, as they may be amended from time to time.
THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. All legal actions and proceedings arising out of or relating to this Note shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the Delaware Chancery Court, then any such legal action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The parties hereto hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any action arising out of or relating to this Note brought by any party hereto, and (b) agree not to commence any action relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action arising out of or relating to this Note or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the action in any such court is brought in an inconvenient forum, (ii) the venue of such action is improper or (iii) this Note, or the subject matter hereof, may not be enforced in or by such courts. Whenever possible each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but in case any provision of or obligation under this Note shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. Whenever in this Note reference is made to Holder or an Issuer, such reference shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Note shall be binding upon each Issuer and its successors and assigns, and shall inure to the benefit of Holder and its successors and assigns.
This Note amends and restates in its entirety the Original Note. This Note is given in substitution and shall supersede, constitute the amendment and restatement of and is intended to evidence the same indebtedness as the Original Note. This Note does not constitute a novation of the indebtedness evidenced by the Original Note. It is expressly understood and agreed that in the event of any conflict between the terms of this Note and Original Note, the terms of this Note shall control.
In addition to and without limitation of any of the foregoing, this Note shall be deemed to be a Transaction Document and shall otherwise be subject to all of general terms and conditions contained in the Purchase Agreement, mutatis mutandis.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Note the day and year first written above written intending to be legally bound hereby.
| ISSUER: | ||
| ATLASCLEAR HOLDINGS, INC. | ||
| By: | /s/ Robert McBey | |
| Name: | Robert McBey | |
| Title: | CEO | |
| HOLDER: | ||
| CHARDAN CAPITAL MARKETS, LLC. | ||
| By: | /s/ Steven Urbach | |
| Name: | Steven Urbach | |
| Title: | CEO | |
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ANNEX A
NOTICE OF CONVERSION
The undersigned hereby elects to convert principal under the Convertible Senior Promissory Note due 2028 of AtlasClear Holdings, Inc., a Delaware corporation (the “Issuer”) (or any successor corporation resulting from any merger or consolidation or reorganization), into shares of common stock (the “Common Stock”), of the Issuer according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Issuer in accordance therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.
By the delivery of this Notice of Conversion the undersigned represents and warrants to the Issuer that its ownership of the Common Stock does not exceed the amounts specified under Section 4 of this Note, as determined in accordance with Section 13(d) of the Exchange Act.
The undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock.
Conversion calculations:
| Date to Effect Conversion: | ||
| Principal Amount of Note to be Converted: | ||
| Number of shares of Common Stock to be issued: | ||
| Signature: | ||
| Name: | ||
| Address for Delivery of Common Stock Certificates: | ||
| Or | ||
| DWAC Instructions: | ||
| Broker No: | ||
| Account No: | ||
Annex A to Amended and Restated Convertible Senior Promissory Note