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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): September
18, 2024
NATURE’S
MIRACLE HOLDING INC
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-41977 |
|
88-3986430 |
(State or other jurisdiction
of Incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification Number) |
3281 E. Guasti Rd., Suite 175
Ontario, CA |
|
91761 |
(Address of registrant’s principal executive office) |
|
(Zip code) |
(909) 218-4601
(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 (see General
Instruction A.2. below):
☐ |
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 of each exchange on which registered |
Common Stock, par value $0.0001 per share |
|
NMHI |
|
The Nasdaq Stock Market LLC |
Warrants to purchase Common Stock, at an exercise price of $11.50 per share |
|
NMHIW |
|
The Nasdaq Stock Market LLC |
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 September 18, 2024, Nature’s Miracle
Holding Inc. (the “Company”) entered into a securities purchase agreement (the “Securities Purchase Agreement”)
with a certain investor (the “Purchaser”) pursuant to which the Purchaser agreed to purchase from the Company a convertible
promissory note in the aggregate principal amount of $107,880 (the “Note”) with an original issue discount of $14,880. The
offering closed on September 20, 2024.
The Note bears a one-time interest charge of 13%.
Accrued, unpaid interest and outstanding principal, subject to adjustment, is required to be paid in five payments, with the first payment
of $60,952 due on March 15, 2025, and the remaining four payments of $15,238 due on the fifteenth day of each month thereafter (a total
payback to the Purchaser of $121,904).
Upon the occurrence and during the continuation
of any Event of Default, the Note shall become immediately due and payable and the Company will be obligated to pay to the Purchaser,
in full satisfaction of its obligations, an amount equal to 150% times the sum of (w) the then outstanding principal amount of the Note
plus (x) accrued and unpaid interest on the unpaid principal amount of the Note to the date of payment plus (y) default interest, if any,
at the rate of 22% per annum on the amounts referred to in clauses (w) and/or (x) plus (z) any amounts owed to the Purchaser pursuant
to the conversion rights referenced below.
Only upon an occurrence of an Event of Default
under the Note, the Purchaser may convert the outstanding unpaid principal amount of the Note into restricted shares of common stock of
the Company at a discount of 25% of the market price. The Purchaser agreed to limit the amount of stock received to less than 4.99% of
the total outstanding common stock. The Company agreed to reserve a number of shares of common stock equal to four times the number of
shares of common stock which may be issuable upon conversion of the Note at all times.
The foregoing descriptions of the Securities Purchase
Agreement and the Note are not intended to be complete and are qualified in their entirety by reference to the full text of the Securities
Purchase Agreement and the Note, respectively, copies of which are filed as Exhibits 10.1 and 10.2 hereto and incorporated by reference
herein. Capitalized terms not otherwise defined in this Item 1.01 have the meaning given to them
in the Note.
Item 2.03. Creation of a Direct Financial Obligation
or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth above in Item 1.01 of
this Current Report on Form 8-K is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: September 24, 2024
|
NATURE’S MIRACLE HOLDING INC. |
|
|
|
By: |
/s/ Tie (James) Li |
|
Name: |
Tie (James) Li |
|
Title: |
Chief Executive Officer |
2
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of September 18, 2024, by and between NATURE’S MIRACLE
HOLDING INC., a Delaware corporation, with its address at 858 N Central Ave., Upland, CA 91786 (the “Company”), and [################],
a Virginia limited liability company, with its address at [################] (the
“Lender”).
WHEREAS:
| A. | The Company and the Lender are executing and delivering this
Agreement in reliance upon the exemption from securities registration afforded by the rules and regulations as promulgated by the United
States Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “1933 Act”);
and |
| B. | Lender desires to purchase and the Company desires to issue
and sell, upon the terms and conditions set forth in this Agreement, a promissory note of the Company, in the form attached hereto as
Exhibit A, in the aggregate principal amount of $107,880.00 (including $14,880.00 of Original Issue Discount) (the “Note”);
and |
NOW THEREFORE, the
Company and the Lender severally (and not jointly) hereby agree as follows:
1. Purchase
and Sale of the Securities.
a. Purchase
of the Securities. On the Closing Date (as defined below), the Company shall issue and sell to the Lender and the Lender agrees to
purchase from the Company the Securities as is set forth immediately below the Lender’s name on the signature pages hereto.
b. Form
of Payment. On the Closing Date (as defined below), (i) the Lender shall pay the purchase price for the Securities be issued and sold
to it at the Closing (as defined below) (the “Purchase Price”) by wire transfer of immediately available funds to the Company,
in accordance with the Company’s written wiring instructions, against delivery of the Securities, and (ii) the Company shall deliver
such duly executed Note on behalf of the Company against delivery of such Purchase Price.
c. Closing
Date. Subject to the satisfaction (or written waiver) of the conditions thereto set forth in Section 6 and Section 7 below, the date
and time of the issuance and sale of the Securities pursuant to this Agreement (the “Closing Date”) shall be 12:00 noon, Eastern
Standard Time on or about September 19, 2024, or such other mutually agreed upon time. The closing of the transactions contemplated by
this Agreement (the “Closing”) shall occur on the Closing Date at such location as may be agreed to by the parties.
2. Lender’s
Representations and Warranties. The Lender represents and warrants to the Company that:
a. Investment
Purpose. As of the date hereof, the Lender is purchasing the Note and the shares of Common stock of the Company (“Common Stock”)
issuable upon conversion of or otherwise pursuant to the Note (such shares of Common Stock being collectively referred to herein as the
“Conversion Shares” and, collectively with the Note, the “Securities”) for its own account and not with a present
view towards the public sale or distribution thereof, except pursuant to sales registered or exempted from registration under the 1933
Act.
b. Accredited
Investor Status. The Lender is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D (an “Accredited
Investor”). Lender, either alone or together with its representatives, has such knowledge, sophistication and experience in
business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the te and the
Conversion Shares, and has so evaluated the merits and risks of such investment. Lender is able to bear the economic risk of an investment
in the Note and Conversion Share and, at the present time, is able to afford a complete loss of such investment. Lender acknowledges
that it has had the opportunity to review the reports filed by the Company with the Securities and Exchange Commission, and has been afforded:
(i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning
the terms and conditions of the offering of the Note and Conversion Shares and the merits and risks of investing in the Note and Conversion
Shares; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that
the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision
with respect to the investment.
c. Reliance
on Exemptions. The Lender understands that the Securities 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 Lender’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of the Lender
set forth herein in order to determine the availability of such exemptions and the eligibility of the Lender to acquire the Securities.
d. Information.
The Company has not disclosed to the Lender any material nonpublic information and will not disclose such information unless such information
is disclosed to the public prior to or promptly following such disclosure to the Lender.
e. Legends.
The Lender understands that the Securities have not been registered under the 1933 Act; and may bear a restrictive legend in substantially
the following form:
“THE SECURITIES REPRESENTED BY THIS
INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER ANY STATE
SECURITIES LAWS, AND MAY NOT BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNLESS (1) A REGISTRATION STATEMENT WITH
RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR (2) THE ISSUER OF SUCH SECURITIES RECEIVES
AN OPINION OF COUNSEL TO THE BUYER OF SUCH SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY ACCEPTABLE TO THE ISSUER’S TRANSFER
AGENT, THAT SUCH SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.”
The legend set forth above
shall be removed and the Company shall issue a certificate without such legend to the Lender of any Security upon which it is stamped,
if, unless otherwise required by applicable state securities laws, (a) such Security is registered for sale under an effective registration
statement filed under the 1933 Act or otherwise may be sold pursuant to an exemption from registration without any restriction as to the
number of securities as of a particular date that can then be immediately sold, or (b) such Lender provides the Company with an opinion
of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale
or transfer of such Security may be made without registration under the 1933 Act, which opinion shall be accepted by the Company so that
the sale or transfer is effected. The Lender agrees to sell all Securities, including those represented by a certificate(s) from which
the legend has been removed, in compliance with applicable prospectus delivery requirements, if any. In the event that the Company does
not reasonably accept the opinion of counsel that properly conforms to applicable securities laws provided by the Lender with respect
to the transfer of any Securities pursuant to an exemption from registration, such as Rule 144, at the Deadline, it will be considered
an Event of Default pursuant to Section 3.2 of the Note.
f. Authorization;
Enforcement. This Agreement has been duly and validly authorized. This Agreement has been duly executed and delivered on behalf of
the Lender, and this Agreement constitutes a valid and binding agreement of the Lender enforceable in accordance with its terms.
g. Nasdaq
Compliance. The Lender is aware of the following: (A) On April 26, 2024, the Company received a notification letter from Nasdaq that
the Company is not in compliance with the minimum Market Value of Publicly Held Shares (“MVPHS”) set forth in Nasdaq Listing
Rule 5450(b)(2)(C) for continued listing on Nasdaq, which requires a minimum MVPHS of $15,000,000, since the Company failed to meet the
MVPHS Requirement for a period of 30 consecutive business days from March 13, 2024 to April 25, 2024. The Notification Letter on MVPHS
provides that pursuant to Nasdaq Listing Rule 5810(c)(3)(D), the Company has 180 calendar days, or until October 23, 2024, to regain compliance
with Nasdaq Listing Rule 5450(b)(2)(C). To regain compliance, the minimum MVPHS must be at least $15,000,000 or more for a minimum of
10 consecutive business days prior to October 23, 2024. If the Company does do not regain compliance by October 23, 2024, it will receive
written notification from Nasdaq that our securities are subject to delisting; (B) The Company received a separate notification letter
from Nasdaq on April 26, 2024, indicating that the it was no longer in compliance with the minimum Market Value of Listed Securities (“MVLS”)of
$50,000,000 required for continued listing on The Nasdaq Global Market, as set forth in Nasdaq Listing Rule 5450(b)(2)(A) since the Company
failed to meet the MVLS Requirement for a period of 30 consecutive business days from March 13, 2024 to April 25, 2024. In accordance
with Nasdaq Listing Rule 5810(c)(3)(C), the Company has a period of 180 calendar days, or until October 23, 2024, to regain compliance
with the MVLS Requirement. To regain compliance, the Company’s MVLS must close at $50,000,000 or more for a minimum of 10 consecutive
business days prior to October 23, 2024. If the Company does not regain compliance by October 23, 2024, it will receive written notification
from Nasdaq that the Company’s’ securities are subject to delisting; and (C) On May 23, 2024, the Company received a notice
from Nasdaq, notifying the Company that, because the closing bid price for the Common Stock has fallen below $1.00 per share for 30 consecutive
business days, the Company no longer complies with the minimum bid price requirement for continued listing on The Nasdaq Global Market
under Nasdaq Listing Rule 5450(a)(1). Nasdaq’s notice has no immediate effect on the listing of the Common Stock on The Nasdaq Global
Market. Pursuant to Nasdaq Listing Rule 5810(c)(3)(A), the Company has have been provided an initial compliance period of 180 calendar
days, or until November 20, 2024, to regain compliance with the minimum bid price requirement. To regain compliance, the closing bid price
of the Common Stock must meet or exceed $1.00 per share for a minimum of 10 consecutive business days prior to November 20, 2024. If the
Company does not regain compliance by November 20, 2024, the Company may be eligible for an additional grace period. To qualify, the Company
would be required to transfer the listing of our securities from The Nasdaq Global Market to the Capital Market and to meet the continued
listing requirements for market value of publicly held shares and all other initial listing standards for the Capital Market, with the
exception of the minimum bid price requirement, and provide written notice of its intention to cure the minimum bid price deficiency
during the second compliance period. If the Company meets these requirements, the Nasdaq staff will grant an additional 180 calendar days
for the Company to regain compliance with the minimum bid price requirement. If the Nasdaq staff determines that we will not be able
to cure the deficiency, or if the Company is otherwise not eligible for such additional compliance period, Nasdaq will provide notice
that the Common Stock will be subject to delisting. The Company would have the right to appeal a determination to delist its Common Stock,
and the Common Stock would remain listed on the Capital Market until the completion of the appeal process. There can be no assurance that
the Company will regain compliance with the minimum bid price requirement. The Lender acknowledges that there is no assurance that the
Company’s Common Stock will continued to be listed on Nasdaq.
3. Representations
and Warranties of the Company. The Company represents and warrants to the Lender that:
a. Organization
and Qualification. The Company and each of its Subsidiaries (as defined below), if any, is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it is incorporated, with full power and authority (corporate and other)
to own, lease, use and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted.
“Subsidiaries” means any corporation or other organization, whether incorporated or unincorporated, in which the Company owns,
directly or indirectly, any equity or other ownership interest.
b. Authorization;
Enforcement. (i) The Company has all requisite corporate power and authority to enter into and perform this Agreement, the Note and
to consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof,
(ii) the execution and delivery of this Agreement, the Note by the Company and the consummation by it of the transactions contemplated
hereby and thereby (including without limitation, the issuance of the Note has 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, (iii) this Agreement
has been duly executed and delivered by the Company by its authorized representative, and such authorized representative is the true and
official representative with authority to sign this Agreement and the other documents executed in connection herewith and bind the Company
accordingly, and (iv) this Agreement constitutes, and upon execution and delivery by the Company of the Note, each of such instruments
will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
c. Capitalization.
As of the date hereof, the authorized Common stock of the Company consists of 100,000,000
authorized shares, $0.0001 par value per share, of which 31,636,751 shares are issued and outstanding. All of such outstanding shares
of capital stock are, or upon issuance will be, duly authorized, validly issued, fully paid and non-assessable.
d. Issuance
of Shares. The Securities are duly authorized and reserved for issuance in accordance with its respective terms, will be validly issued,
fully paid and non-assessable, and free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not
be subject to preemptive rights or other similar rights of shareholders of the Company and will not impose personal liability upon the
Lender thereof.
e. No
Conflicts. Except as set forth on Schedule 3(e), the execution, delivery and performance of this Agreement, the Note by the Company
and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) conflict with or result in a violation
of any provision of the Certificate of Incorporation or By-laws, or (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, acceleration or cancellation of, any agreement, indenture, patent, patent license or instrument to which
the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree
(including 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 any of its Subsidiaries or by which any property or asset of the Company or
any of its Subsidiaries is bound or affected (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations
and violations as would not, individually or in the aggregate, have a Material Adverse Effect). The businesses of the Company and its
Subsidiaries, if any, are not being conducted, and shall not be conducted so long as the Lender owns any of the Securities, in violation
of any law, ordinance or regulation of any governmental entity. “Material Adverse Effect” means any material adverse effect
on the business, operations, assets, financial condition or prospects of the Company or its Subsidiaries, if any, taken as a whole, or
on the transactions contemplated hereby or by the agreements or instruments to be entered into in connection herewith.
f. SEC
Documents; Financial Statements. Since January 1, 2022, the Company has 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 and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits
to such documents) incorporated by reference therein, being hereinafter referred to herein as the “SEC Documents”). As of
their respective dates or if amended, as of the dates of the amendments, the SEC Documents complied in all material respects with the
requirements of the Exchange Act 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. None of the statements made in any such SEC Documents is, or has been, required to be amended or
updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof).
As of their respective dates or if amended, as of the dates of the amendments, the financial statements of the Company included in the
SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations
of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting
principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position
of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). The Company is subject
to the reporting requirements of the Exchange Act.
g. Absence
of Certain Changes. Since June 30, 2024, except as set forth in the SEC Documents, there has been no material adverse change and no
material adverse development in the assets, liabilities, business, properties, operations, financial condition, results of operations,
prospects or Exchange Act reporting status of the Company or any of its Subsidiaries.
h. Absence
of Litigation. Except as set forth in the SEC Documents, there is no action, suit, claim, proceeding, inquiry or investigation before
or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company or
any of its Subsidiaries, threatened against or affecting the Company or any of its Subsidiaries, or their officers or directors in their
capacity as such, that could have a Material Adverse Effect. The Company and its Subsidiaries are unaware of any facts or circumstances
which might give rise to any of the foregoing.
i. No
Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales in any security or solicited any offers to buy any security under circumstances that would require
registration under the 1933 Act of the issuance of the Securities to the Lender. The issuance of the Securities to the Lender will not
be integrated with any other issuance of the Company’s securities (past, current or future) for purposes of any shareholder approval
provisions applicable to the Company or its securities.
j. No
Brokers. Except with respect to Spartan Capital LLC, the Company has taken no action which would give rise to any claim by any person
for brokerage commissions, transaction fees or similar payments relating to this Agreement or the transactions contemplated hereby.
k. No
Investment Company. The Company is not, and upon the issuance and sale of the Securities as contemplated by this Agreement will not
be an “investment company” required to be registered under the Investment Company Act of 1940 (an “Investment Company”).
The Company is not controlled by an Investment Company.
l. Breach
of Representations and Warranties by the Company. If the Company breaches any of the material representations or warranties set forth
in this Section 3 which is continuing after the applicable cure period as set forth in the Note, if any, and in addition to any other
remedies available to the Lender pursuant to this Agreement, it will be considered an Event of default under Section 4.4 of the Note.
4. COVENANTS.
a. Reasonable
Commercial Efforts. The Company shall use its reasonable commercial efforts to satisfy timely each of the conditions described in
Section 7 of this Agreement.
b. Use
of Proceeds. The Company shall use the proceeds for general working capital purposes.
c. Expenses.
At the Closing, the Company’s obligation with respect to the transactions contemplated by this Agreement is to reimburse Lender’s
expenses shall be $8,000.00 for Lender’s legal fees and due diligence fee.
d. Corporate
Existence. So long as the Lender beneficially owns any Note, the Company shall maintain its corporate existence and shall not sell
all or substantially all of the Company’s assets in one or a series of transactions the result of which would render the Company
a “shell company” as such term in defined in Rule 144.
e. Breach
of Covenants. If the Company breaches any of the material covenants set forth in this Section 4, and in addition to any other remedies
available to the Lender pursuant to this Agreement which is continuing after the applicable cure period as set forth in the Note, it will
be considered an event of default under Section 4.4 of the Note.
f. Failure
to Comply with the Exchange Act. So long as the Lender beneficially owns the Note, the Company shall comply with the reporting requirements
of the Exchange Act; and the Company shall continue to be subject to the reporting requirements of the Exchange Act.
g. The
Company has not engaged the Lender to perform “Dealer” actions. The Lender and the Company hereby acknowledge and
agree that the Company has not engaged the Lender to: (i) act as an underwriter; (ii) act as a market maker or specialist; (iii) act as
“de facto” market maker; or (iv) conduct any other professional market activities such as providing investment advice, extending
credit and lending securities in connection.
5. Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent to issue certificates, registered in the
name of the Lender or its nominee, for the shares underlying any conversion of the Note upon default of the Note (the “Conversion
Shares”) in such amounts as specified from time to time by the Lender to the Company upon conversion of the Note in accordance with
the terms thereof (the “Irrevocable Transfer Agent Instructions”). In the event that the Company proposes to replace
its transfer agent, the Company shall provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer
Agent Instructions in a form as initially delivered pursuant to this Agreement (including but not limited to the provision to irrevocably
reserve shares of Common Stock in the Reserved Amount as such term is defined in the Note) signed by the successor transfer agent to Company
and the Company. Prior to registration of the Conversion Shares under the 1933 Act or the date on which the Conversion Shares may be sold
pursuant to an exemption from registration, all such certificates shall bear the restrictive legend specified in Section 2(e) of this
Agreement. The Company warrants that: (i) no instruction other than the Irrevocable Transfer Agent Instructions referred to in this
Section 5, will be given by the Company to its transfer agent and that the Securities shall otherwise be freely transferable on the books
and records of the Company as and to the extent provided in this Agreement and the Note; (ii) it will not direct its transfer agent not
to transfer or delay, impair, and/or hinder its transfer agent in transferring (or issuing)(electronically or in certificated form) any
certificate for Conversion Shares to be issued to the Lender upon conversion of or otherwise pursuant to the Note as and when required
by the Note and this Agreement; and (iii) it will not fail to remove (or directs its transfer agent not to remove or impairs, delays,
and/or hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof)
on any certificate for any Conversion Shares issued to the Lender upon conversion of or otherwise pursuant to the Note as and when required
by the Note and/or this Agreement. If the Lender provides the Company and the Company’s transfer, at the cost of the Lender,
with an opinion of counsel in form, substance and scope customary for opinions in comparable transactions, to the effect that a public
sale or transfer of such Securities may be made without registration under the 1933 Act, the Company shall permit the transfer, and, in
the case of the Conversion Shares, promptly instruct its transfer agent to issue one or more certificates, free from restrictive legend,
in such name and in such denominations as specified by the Lender. The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Lender, by vitiating the intent and purpose of the transactions contemplated hereby.
Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5 may be inadequate and
agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section, that the Lender shall be entitled,
in addition to all other available remedies, to an injunction restraining any breach and requiring immediate transfer, without the necessity
of showing economic loss and without any bond or other security being required.
6. Conditions
to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the Securities to the Lender
at the Closing is subject to the satisfaction, at or before the Closing Date of each of the following conditions thereto, provided that
these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion:
a. The
Lender shall have executed this Agreement and delivered the same to the Company.
b. The
Lender shall have delivered the Purchase Price in accordance with Section 1(b) above.
c. The
representations and warranties of the Lender shall be true and correct in all material respects as of the date when made and as of the
Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Lender
shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by the Lender at or prior to the Closing Date.
d. No
litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
7. Conditions
to The Lender’s Obligation to Purchase. The obligation of the Lender hereunder to purchase the Securities at the Closing is
subject to the satisfaction, at or before the Closing Date of each of the following conditions, provided that these conditions are for
the Lender’s sole benefit and may be waived by the Lender at any time in its sole discretion:
a. The
Company shall have executed this Agreement and delivered the same to the Lender.
b. The
Company shall have delivered to the Lender the duly executed Note, in accordance with Section 1(b) above.
c. The
Irrevocable Transfer Agent Instructions, in form and substance satisfactory to the Lender, shall have been delivered to and acknowledged
in writing by the Company’s Transfer Agent.
d. The
representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the
Closing Date as though made at such time (except for representations and warranties that speak as of a specific date) and the Company
shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement
to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Lender shall have received a certificate
or certificates, executed by the chief executive officer of the Company, dated as of the Closing Date, to the foregoing effect and as
to such other matters as may be reasonably requested by the Lender including, but not limited to certificates with respect to the Board
of Directors’ resolutions relating to the transactions contemplated hereby.
e. No
litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.
f. No
event shall have occurred which could reasonably be expected to have a Material Adverse Effect on the Company including but not limited
to a change in the Exchange Act reporting status of the Company or the failure of the Company to be timely in its Exchange Act reporting
obligations.
8. Governing
Law; Miscellaneous.
a. Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard
to principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this
Agreement shall be brought only in the Circuit Court of Fairfax County, Virginia or in the Alexandria Division of the United States District
Court for the Eastern District of Virginia. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue
of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non
conveniens. The Company and Lender waive trial by jury. The Lender shall be entitled to recover from the Company its reasonable attorney’s
fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or
unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict
therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereby irrevocably waives
personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement,
the Note or any related document or agreement by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence
of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve
process in any other manner permitted by law.
b. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party.
c. Headings.
The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the interpretation of, this
Agreement.
d. Severability.
In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or
rule of law. Any provision hereof which may prove invalid or unenforceable under any law shall not affect the validity or enforceability
of any other provision hereof.
e. Entire
Agreement; Amendments. This Agreement and the instruments referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Lender
makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be waived
or amended other than by an instrument in writing signed by the majority in interest of the Lender.
f. Notices.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery,
telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated
below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the
second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such communications shall be as set forth in the heading of this
Agreement with a copy by fax only to (which copy shall not constitute notice) to [################].
Each party shall provide notice to the other party of any change in address.
g. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. Neither
the Company nor the Lender shall assign this Agreement or any rights or obligations hereunder without the prior written consent of the
other. Notwithstanding the foregoing, the Lender may assign its rights hereunder to any person that purchases Securities in a private
transaction from the Lender or to any of its “affiliates,” as that term is defined under the Exchange Act, without the consent
of the Company.
h. Survival.
The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the closing
hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Lender. The Company agrees to indemnify and
hold harmless the Lender and all their officers, directors, employees and agents for loss or damage arising as a result of or related
to any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or
any of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.
i. Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as the other 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.
j. No
Strict Construction. The language used in this Agreement will be 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.
k. Remedies.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Lender by vitiating the intent
and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations
under this Agreement will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of
this Agreement, that the Lender shall be entitled, in addition to all other available remedies at law or in equity, and in addition to
the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement and to
enforce specifically the terms and provisions hereof, without the necessity of showing economic loss and without any bond or other security
being required.
[THE REMAINDER OF THIS PAGE IS
INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned
Lender and the Company have caused this Agreement to be duly executed as of the date first above written.
NATURE’S MIRACLE HOLDING INC.
By: |
|
|
|
Tie (James) Li |
|
|
Chief Executive Officer |
|
[################] |
|
By: |
|
|
|
[################] |
|
|
[################] |
|
Aggregate Principal Amount of Note: | |
$ | 107,880.00 | |
| |
| | |
Original Issue Discount | |
$ | 14,880.00 | |
| |
| | |
Aggregate Purchase Price: | |
$ | 93,000.00 | |
12
Exhibit
10.2
THE
ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A)
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH
COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
THE
ISSUE PRICE OF THIS NOTE IS $107,880.00
THE
ORIGINAL ISSUE DISCOUNT IS $14,880.00
Principal
Amount: $107,880.00 |
Issue
Date: September 18, 2024 |
Purchase
Price: $93,000.00 |
|
PROMISSORY
NOTE
FOR
VALUE RECEIVED, NATURE’S MIRACLE HOLDING INC., a Delaware corporation (hereinafter called the “Borrower”),
hereby promises to pay to the order of [################], a Virginia limited liability company, or registered assigns (the “Holder”)
the sum of $107,880.00 together with any interest as set forth herein, on July 15, 2025 (the “Maturity Date”), and to pay
interest on the unpaid principal balance hereof from the date hereof (the “Issue Date”) as set forth herein. This Note may
not be prepaid in whole or in part except as otherwise explicitly set forth herein. Any amount of principal or interest on this Note
which is not paid when due shall bear interest at the rate of twenty two percent (22%) per annum from the due date thereof until the
same is paid (“Default Interest”). All payments due hereunder (to the extent not converted into common stock, $0.0001 par
value per share (the “Common Stock”) in accordance with the terms hereof) shall be made in lawful money of the United States
of America. All payments shall be made at such address as the Holder shall hereafter give to the Borrower by written notice made in accordance
with the provisions of this Note. Each capitalized term used herein, and not otherwise defined, shall have the meaning ascribed thereto
in that certain Securities Purchase Agreement dated the date hereof, pursuant to which this Note was originally issued (the “Purchase
Agreement”).
This
Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive
rights or other similar rights of shareholders of the Borrower and will not impose personal liability upon the holder thereof.
The
following terms shall apply to this Note:
Article
I. GENERAL TERMS
1.1 Interest.
A one-time interest charge of thirteen percent (13%) (the “Interest Rate”) shall be applied on the Issuance Date to the principal
amount ($107,880.00 * thirteen percent (13%) = $14,024.00). Interest hereunder shall be paid as set forth herein to the Holder or its
assignee in whose name this Note is registered on the records of the Company regarding registration and transfers of Notes in cash or,
in the Event of Default, at the Option of the Holder, converted into share of Common Stock as set forth herein.
1.2 Mandatory
Monthly Payments. Accrued, unpaid interest and outstanding principal, subject to adjustment, shall be paid in five (5) payments as
follows:
Payment Date | |
Amount of Payment | |
| |
| |
March 15, 2025 | |
$ | 60,952.00 | |
April 15, 2025 | |
$ | 15,238.00 | |
May 15, 2025 | |
$ | 15,238.00 | |
June 15, 2025 | |
$ | 15,238.00 | |
July 15, 2025 | |
$ | 15,238.00 | |
(a
total payback to the Holder of $121,904.00).
The
Company shall have a five (5) day grace period with respect to each payment. The Company has right to prepay in full at any time with
no prepayment penalty. All payments shall be made by bank wire transfer to the Holder’s wire instructions, attached hereto as Exhibit
A. For the avoidance of doubt, a missed payment shall be considered an Event of Default.
Article
II. CERTAIN COVENANTS
2.1 Sale
of Assets. So long as the Borrower shall have any obligation under this Note, the Borrower shall not, without the Holder’s
written consent, sell, lease or otherwise dispose of any significant portion of its assets outside the ordinary course of business. Any
consent to the disposition of any assets may be conditioned on a specified use of the proceeds of disposition subject to any requirements
by the Borrower’s senior secured lender.
Article
III. EVENTS OF DEFAULT
If
any of the following events of default (each, an “Event of Default”) shall occur:
3.1 Failure
to Pay Principal and Interest. The Borrower fails to pay the principal hereof or interest thereon when due on this Note, whether
at maturity, upon acceleration or otherwise and such breach continues for a period of five (5) days after written notice from the Holder.
3.2 Breach
of Covenants. The Borrower breaches any material covenant or other material term or condition contained in this Note and any collateral
documents including but not limited to the Purchase Agreement and such breach continues for a period of twenty (20) days after written
notice thereof to the Borrower from the Holder.
3.3 Breach
of Representations and Warranties. Any representation or warranty of the Borrower made herein or in any agreement, statement or certificate
given in writing pursuant hereto or in connection herewith (including, without limitation, the Purchase Agreement), shall be false or
misleading in any material respect when made and the breach of which has (or with the passage of time will have) a material adverse effect
on the rights of the Holder with respect to this Note or the Purchase Agreement.
3.4 Receiver
or Trustee. The Borrower or any subsidiary of the Borrower shall make an assignment for the benefit of creditors, or apply for or
consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or such a receiver
or trustee shall otherwise be appointed.
3.5 Bankruptcy.
Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings, voluntary or involuntary, for relief under any
bankruptcy law or any law for the relief of debtors shall be instituted by or against the Borrower or any subsidiary of the Borrower
on or after the Issue Date.
3.6 Delisting
of Common Stock. The Borrower shall fail to maintain the listing of the Common Stock on the Nasdaq National Market, the Nasdaq SmallCap
Market, the New York Stock Exchange, or the NYSE American Stock Exchange (collectively, the “Exchanges”).
3.7 Failure
to Comply with the Exchange Act. The Borrower shall fail to materially comply with the reporting requirements of the Exchange Act;
and/or the Borrower shall cease to be subject to the reporting requirements of the Exchange Act.
3.8 Liquidation.
Any dissolution, liquidation, or winding up of Borrower or any substantial portion of its business.
3.9 Cessation
of Operations. Any cessation of operations by Borrower or Borrower admits it is otherwise generally unable to pay its debts as
such debts become due, provided, however, that any disclosure of the Borrower’s ability to continue as a “going concern”
shall not be an admission that the Borrower cannot pay its debts as they become due.
3.10 Financial
Statement Restatement. The restatement of any financial statements filed by the Borrower with the SEC at any time after 180 days
after the Issuance Date for any date or period until this Note is no longer outstanding, if the result of such restatement would, by
comparison to the un-restated financial statement, have constituted a material adverse effect on the rights of the Holder with respect
to this Note or the Purchase Agreement.
3.11
Replacement of Transfer Agent. In the event that the Borrower proposes to replace its transfer agent, the Borrower fails to provide,
prior to the effective date of such replacement, a fully executed Irrevocable Transfer Agent Instructions in a form as initially delivered
pursuant to the Purchase Agreement (including but not limited to the provision to irrevocably reserve shares of Common Stock in the Reserved
Amount) signed by the successor transfer agent to Borrower and the Borrower.
Upon
the occurrence and during the continuation of any Event of Default, the Note shall become immediately due and payable and the Borrower
shall pay to the Holder, in full satisfaction of its obligations hereunder, an amount equal to 150% times the sum of (w)
the then outstanding principal amount of this Note plus (x) accrued and unpaid interest on the unpaid principal amount of this
Note to the date of payment (the “Mandatory Prepayment Date”) plus (y) Default Interest, if any, on the amounts referred
to in clauses (w) and/or (x) plus (z) any amounts owed to the Holder pursuant to Article IV hereof (the then outstanding principal
amount of this Note to the date of payment plus the amounts referred to in clauses (x), (y) and (z) shall collectively be known
as the “Default Amount”) and all other amounts payable hereunder shall immediately become due and payable, all without demand,
presentment or notice, all of which hereby are expressly waived, together with all costs, including, without limitation, legal fees and
expenses, of collection, and the Holder shall be entitled to exercise all other rights and remedies available at law or in equity.
Article
IV. CONVERSION RIGHTS
4.1
Conversion Right. Until this Note is paid or otherwise satisfied, after September 30, 2024 and thereafter following and subject
to the occurrence of an Event of Default, at any time, the Holder shall have the right, to convert all or any part of the outstanding
and unpaid amount of this Note into fully paid and non-assessable shares of Common Stock, as such Common Stock exists on the Issue Date,
or any shares of capital stock or other securities of the Borrower into which such Common Stock shall hereafter be changed or reclassified
at the conversion price determined as provided herein (a “Conversion”); provided, however, that in no event
shall the Holder be entitled to convert any portion of this Note in excess of that portion of this Note upon conversion of which the
sum of (1) the number of shares of Common Stock beneficially owned by the Holder and its affiliates (other than shares of Common Stock
which may be deemed beneficially owned through the ownership of the unconverted portion of the Notes or the unexercised or unconverted
portion of any other security of the Borrower subject to a limitation on conversion or exercise analogous to the limitations contained
herein) and (2) the number of shares of Common Stock issuable upon the conversion of the portion of this Note with respect to which the
determination of this proviso is being made, would result in beneficial ownership by the Holder and its affiliates of more than 4.99%
of the outstanding shares of Common Stock. For purposes of the proviso to the immediately preceding sentence, beneficial ownership shall
be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such proviso. The beneficial ownership limitations on
conversion as set forth in the section may NOT be waived by the Holder. The number of shares of Common Stock to be issued upon each
conversion of this Note shall be determined by dividing the Conversion Amount (as defined below) by the applicable Conversion Price then
in effect on the date specified in the notice of conversion, in the form attached hereto as Exhibit B(the “Notice of Conversion”),
delivered to the Borrower by the Holder in accordance with Section 4.4 below; provided that the Notice of Conversion is submitted by
facsimile or e-mail (or by other means resulting in, or reasonably expected to result in, notice) to the Borrower before 6:00 p.m., New
York, New York time on such conversion date (the “Conversion Date”); however, if the Notice of Conversion is sent after 6:00pm,
New York, New York time the Conversion Date shall be the next business day. The term “Conversion Amount” means, with respect
to any conversion of this Note, the sum of (1) the principal amount of this Note to be converted in such conversion plus (2) at
the Holder’s option, accrued and unpaid interest, if any, on such principal amount at the interest rates provided in this Note
to the Conversion Date, plus (3) at the Holder’s option, Default Interest, if any, on the amounts referred to in the immediately
preceding clauses (1) and/or (2) plus (4) at the Holder’s option, any amounts owed to the Holder pursuant to Sections 4.4
hereof. Notwithstanding anything in this Agreement to the contrary, and in addition to the limitations set forth herein, if the Borrower
has not obtained Shareholder Approval, the Borrower shall not issue a number of shares of Common Stock under this Agreement, which when
aggregated with all other securities that are required to be aggregated for purposes of Rule 5635(d), would exceed 19.99% of the shares
of Common Stock outstanding as of the date of definitive agreement with respect to the first of such aggregated transactions (the “Conversion
Limitation”). For purposes of this section, "Shareholder Approval" means such approval as may be required by the applicable
rules and regulations of the Nasdaq Stock Market LLC (or any successor entity) from the shareholders of the Company with respect to the
issuance of the shares under this Agreement that, when taken together with any other securities that are required to be aggregated with
the issuance of the shares issued under this Agreement for purposes of Rule 5635(d) of the Nasdaq Stock Market LLC (“Rule 5635(d)”),
would exceed 19.99% of the issued and outstanding common stock as of the date of definitive agreement with respect to the first of such
aggregated transactions. “Principal Market” means the Exchanges, the quotation platforms maintained by the OTC Markets Group)
or an equivalent replacement exchange, and all rules and regulations relating to such exchange. Upon the occurrence of an Event of Default
pursuant to Section 3.6 hereof, the Conversion Limitation shall no longer apply to limit the issuance of shares in conversion of this
Note.
The
Holder shall be entitled to deduct $1,500.00 from the conversion amount in each Notice of Conversion to cover Holder's deposit fees associated
with each Notice of Conversion. Any additional expenses incurred by Holder with respect to the Borrower's transfer agent, for the issuance
of the Common Stock into which this Note is convertible into, shall immediately and automatically be added to the balance of the Note
at such time as the expenses are incurred by Holder. Notwithstanding the foregoing, the Holder may not effectuate any Conversion and
the Company may not issue any shares of Common Stock in connection therewith that would trigger any Nasdaq requirement to obtain stockholder
approval prior to a Conversion or any issuance of shares of Common Stock in connection therewith that would be in excess of that number
of shares of Common Stock equivalent to 19.9% of the number of shares of Common Stock pursuant to this Note; provided, however, that
the Holder shall effectuate any Conversion and the Company shall be obligated to issue shares of Common Stock in connection therewith
that would not trigger such a requirement. This restriction shall be of no further force or effect upon the approval of the stockholders
in compliance with stockholder voting requirements of the applicable Nasdaq rules.
4.2 Conversion
Price. The Conversion Price shall mean 75% multiplied by the Market Price (as defined herein) (representing a discount rate of 25%).
(subject to equitable adjustments for stock splits, stock dividends or rights offerings by the Borrower relating to the Borrower’s
securities or the securities of any subsidiary of the Borrower, combinations, recapitalization, reclassifications, extraordinary distributions
and similar events). “Market Price” means the lowest Trading Price (as defined below) for the Common Stock during the ten
(10) Trading Day period ending on the latest complete Trading Day prior to the Conversion Date. “Trading Price” means, for
any security as of any date, the closing bid price on the or applicable exchange or trading market (the “Trading Market”)
as reported by a reliable reporting service (“Reporting Service”) designated by the Holder (i.e. Bloomberg) or, if the Trading
Market is not the principal trading market for such security, the closing bid price of such security on the principal securities exchange
or trading market where such security is listed or traded or, if no closing bid price of such security is available in any of the foregoing
manners, the average of the closing bid prices of any market makers for such security that are listed in the “pink sheets”.
If the Trading Price cannot be calculated for such security on such date in the manner provided above, the Trading Price shall be the
fair market value as mutually determined by the Borrower and the holders of a majority in interest of the Notes being converted for which
the calculation of the Trading Price is required in order to determine the Conversion Price of such Notes. “Trading Day”
shall mean any day on which the Common Stock is tradable for any period on the Trading Market, or on the principal securities exchange
or other securities market on which the Common Stock is then being traded.
4.3 Authorized
Shares. The Borrower covenants that during the period that the Note is outstanding, the Borrower will reserve from its authorized
and unissued Common Stock a sufficient number of shares, free from preemptive rights, to provide for the issuance of Common Stock upon
the full conversion of this Note issued pursuant to the Purchase Agreement. The Borrower is required at all times to have authorized
and reserved eight times the number of shares that is actually issuable upon full conversion of the Note (based on the Conversion Price
of the Note in effect from time to time initially 6,324,186 shares) (the “Reserved Amount”). The Reserved Amount shall be
increased (or decreased) from time to time (and in the case of each payment received by the Holder hereunder) in accordance with the
Borrower’s obligations hereunder. The Borrower represents that upon issuance, such shares will be duly and validly issued, fully
paid and non-assessable. In addition, if the Borrower shall issue any securities or make any change to its capital structure which would
change the number of shares of Common Stock into which the Notes shall be convertible at the then current Conversion Price, the Borrower
shall at the same time make proper provision so that thereafter there shall be a sufficient number of shares of Common Stock authorized
and reserved, free from preemptive rights, for conversion of the outstanding Note. The Borrower (i) acknowledges that it has irrevocably
instructed its transfer agent to issue certificates for the Common Stock issuable upon conversion of this Note, and (ii) agrees
that its issuance of this Note shall constitute full authority to its officers and agents who are charged with the duty of executing
stock certificates to execute and issue the necessary certificates for shares of Common Stock in accordance with the terms and conditions
of this Note.
If,
at any time the Borrower does not maintain the Reserved Amount it will be considered an Event of Default under this Note.
4.4 Method
of Conversion.
(a) Mechanics
of Conversion. As set forth in Section 4.1 hereof, at any time following an Event of Default, and during the continuation thereof,
the balance due pursuant to this Note may be converted by the Holder in whole or in part at any time from time to time after the Issue
Date, by (A) submitting to the Borrower a Notice of Conversion (by facsimile, e-mail or other reasonable means of communication
dispatched on the Conversion Date prior to 6:00 p.m., New York, New York time) and (B) subject to Section 4.4(b), surrendering this
Note at the principal office of the Borrower (upon payment in full of any amounts owed hereunder).
(b) Surrender
of Note Upon Conversion. Notwithstanding anything to the contrary set forth herein, upon conversion of this Note in accordance with
the terms hereof, the Holder shall not be required to physically surrender this Note to the Borrower unless the entire unpaid principal
amount of this Note is so converted. The Holder and the Borrower shall maintain records showing the principal amount so converted and
the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder and the Borrower, so as not to require
physical surrender of this Note upon each such conversion.
(c) Delivery
of Common Stock Upon Conversion. Upon receipt by the Borrower from the Holder of a facsimile transmission or e-mail (or other reasonable
means of communication) of a Notice of Conversion meeting the requirements for conversion as provided in this Section 4.4, the Borrower
shall issue and deliver or cause to be issued and delivered to or upon the order of the Holder certificates for the Common Stock issuable
upon such conversion within three (3) business days after such receipt subject to the terms hereof and applicable rules of the Principal
Market (as defined hereinbelow) (the “Deadline”) (and, solely in the case of conversion of the entire unpaid principal amount
hereof, surrender of this Note) in accordance with the terms hereof and the Purchase Agreement. Upon receipt by the Borrower of a Notice
of Conversion, the Holder shall be deemed to be the holder of record of the Common Stock issuable upon such conversion, the outstanding
principal amount and the amount of accrued and unpaid interest on this Note shall be reduced to reflect such conversion, and, unless
the Borrower defaults on its obligations hereunder, all rights with respect to the portion of this Note being so converted shall forthwith
terminate except the right to receive the Common Stock or other securities, cash or other assets, as herein provided, on such conversion.
If the Holder shall have given a Notice of Conversion as provided herein, the Borrower’s obligation to issue and deliver the certificates
for Common Stock shall be absolute and unconditional, irrespective of the absence of any action by the Holder to enforce the same, any
waiver or consent with respect to any provision thereof, the recovery of any judgment against any person or any action to enforce the
same, any failure or delay in the enforcement of any other obligation of the Borrower to the holder of record, or any setoff, counterclaim,
recoupment, limitation or termination, or any breach or alleged breach by the Holder of any obligation to the Borrower, and irrespective
of any other circumstance which might otherwise limit such obligation of the Borrower to the Holder in connection with such conversion.
(d) Delivery
of Common Stock by Electronic Transfer. In lieu of delivering physical certificates representing the Common Stock issuable upon conversion,
provided the Borrower is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer (“FAST”)
program, upon request of the Holder and its compliance with the provisions set forth herein, the Borrower shall use its best efforts
to cause its transfer agent to electronically transmit the Common Stock issuable upon conversion to the Holder by crediting the account
of Holder’s Prime Broker with DTC through its Deposit and Withdrawal at Custodian (“DWAC”) system.
(e) Failure
to Deliver Common Stock Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies, including
actual damages and/or equitable relief, the parties agree that if delivery of the Common Stock issuable upon conversion of this Note
is not delivered by the Deadline due to action and/or inaction of the Borrower, the Borrower shall pay to the Holder $2,000 per day in
cash, for each day beyond the Deadline that the Borrower fails to deliver such Common Stock (the “Fail to Deliver Fee”);
provided; however that the Fail to Deliver Fee shall not be due if the failure is a result of a third party (i.e., transfer agent; and
not the result of any failure to pay such transfer agent) despite the best efforts of the Borrower to effect delivery of such Common
Stock. Such cash amount shall be paid to Holder by the fifth day of the month following the month in which it has accrued or, at the
option of the Holder (by written notice to the Borrower by the first day of the month following the month in which it has accrued), shall
be added to the principal amount of this Note, in which event interest shall accrue thereon in accordance with the terms of this Note
and such additional principal amount shall be convertible into Common Stock in accordance with the terms of this Note. The Borrower agrees
that the right to convert is a valuable right to the Holder. The damages resulting from a failure, attempt to frustrate, interference
with such conversion right are difficult if not impossible to qualify. Accordingly, the parties acknowledge that the liquidated damages
provision contained in this Section 4.4(e) are justified.
4.5
Concerning the Shares. The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless:
(i) such shares are sold pursuant to an effective registration statement under the Act or (ii) the Borrower or its transfer agent shall
have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel
in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption
from such registration (such as Rule 144 or a successor rule) (“Rule 144”); or (iii) such shares are transferred to an “affiliate”
(as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 4.5
and who is an Accredited Investor (as defined in the Purchase Agreement).
Any
restrictive legend on certificates representing shares of Common Stock issuable upon conversion of this Note shall be removed and the
Borrower shall issue to the Holder a new certificate therefore free of any transfer legend if the Borrower or its transfer agent shall
have received an opinion of counsel from Holder’s counsel, in form, substance and scope customary for opinions of counsel in comparable
transactions, to the effect that (i) a public sale or transfer of such Common Stock may be made without registration under the Act, which
opinion shall be accepted by the Company so that the sale or transfer is effected; or (ii) in the case of the Common Stock issuable upon
conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the
Act; or otherwise may be sold pursuant to an exemption from registration. In the event that the Company does not reasonably accept the
opinion of counsel provided by the Holder with respect to the transfer of Securities pursuant to an exemption from registration (such
as Rule 144), it will be considered an Event of Default pursuant to this Note.
4.6 Effect
of Certain Events.
(a) Effect
of Merger, Consolidation, Etc. Until this note is paid or other satisfied, at the option of the Holder, the sale, conveyance or disposition
of all or substantially all of the assets of the Borrower, the effectuation by the Borrower of a transaction or series of related transactions
in which more than 50% of the voting power of the Borrower is disposed of, or the consolidation, merger or other business combination
of the Borrower with or into any other Person (as defined below) or Persons when the Borrower is not the survivor shall be deemed to
be an Event of Default (as defined in Article III) pursuant to which the Borrower shall be required to pay to the Holder upon the consummation
of and as a condition to such transaction an amount equal to the Default Amount (as defined in Article III). “Person” shall
mean any individual, corporation, limited liability company, partnership, association, trust or other entity or organization.
(b) Adjustment
Due to Merger, Consolidation, Etc. If, at any time when this Note is issued and outstanding and prior to conversion of all of the
Note, there shall be any merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar event, as a result
of which shares of Common Stock of the Borrower shall be changed into the same or a different number of shares of another class or classes
of stock or securities of the Borrower or another entity, or in case of any sale or conveyance of all or substantially all of the assets
of the Borrower other than in connection with a plan of complete liquidation of the Borrower, then the Holder of this Note shall thereafter
have the right to receive upon conversion of this Note, upon the basis and upon the terms and conditions specified herein and in lieu
of the shares of Common Stock immediately theretofore issuable upon conversion, such stock, securities or assets which the Holder would
have been entitled to receive in such transaction had this Note been converted in full immediately prior to such transaction (without
regard to any limitations on conversion set forth herein), and in any such case appropriate provisions shall be made with respect to
the rights and interests of the Holder of this Note to the end that the provisions hereof (including, without limitation, provisions
for adjustment of the Conversion Price and of the number of shares issuable upon conversion of the Note) shall thereafter be applicable,
as nearly as may be practicable in relation to any securities or assets thereafter deliverable upon the conversion hereof. The Borrower
shall not affect any transaction described in this Section 4.6(b) unless (a) it first gives, to the extent practicable, ten (10) days
prior written notice (but in any event at least five (5) days prior written notice) of the record date of the special meeting of shareholders
to approve, or if there is no such record date, the consummation of, such merger, consolidation, exchange of shares, recapitalization,
reorganization or other similar event or sale of assets (during which time the Holder shall be entitled to convert this Note) and (b)
the resulting successor or acquiring entity (if not the Borrower) assumes by written instrument the obligations of this Note. The above
provisions shall similarly apply to successive consolidations, mergers, sales, transfers or share exchanges.
(c) Adjustment
Due to Distribution. If while this note is outstanding and not satisfied, the Borrower shall declare or make any distribution of
its assets (or rights to acquire its assets) to holders of Common Stock as a dividend, stock repurchase, by way of return of capital
or otherwise (including any dividend or distribution to the Borrower’s shareholders in cash or shares (or rights to acquire shares)
of capital stock of a subsidiary (i.e., a spin-off)) (a “Distribution”), then the Holder of this Note shall be entitled,
upon any conversion of this Note after the date of record for determining shareholders entitled to such Distribution, to receive the
amount of such assets which would have been payable to the Holder with respect to the shares of Common Stock issuable upon such conversion
had such Holder been the holder of such shares of Common Stock on the record date for the determination of shareholders entitled to such
Distribution.
Article
V. Miscellaneous
5.1 Failure
or Indulgence Not Waiver. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privileges. All rights and remedies existing hereunder are cumulative to, and not exclusive
of, any rights or remedies otherwise available.
5.2 Notices.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt
requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery,
telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written
notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery
or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated
below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on
the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual
receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:
If
to the Borrower, to:
[################],
If
to the Holder:
[################]
5.3 Amendments.
This Note and any provision hereof may only be amended by an instrument in writing signed by the Borrower and the Holder. The term “Note”
and all reference thereto, as used throughout this instrument, shall mean this instrument (and the other Notes issued pursuant to the
Purchase Agreement) as originally executed, or if later amended or supplemented, then as so amended or supplemented.
5.4 Assignability.
This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to be the benefit of the Holder and its
successors and assigns. Each transferee of this Note must be an “accredited investor” (as defined in Rule 501(a) of the Securities
and Exchange Commission). Notwithstanding anything in this Note to the contrary, this Note may be pledged as collateral in connection
with a bona fide margin account or other lending arrangement; and may be assigned by the Holder without the consent of the Borrower.
5.5 Cost
of Collection. If default is made in the payment of this Note, the Borrower shall pay the Holder hereof costs of collection, including
reasonable attorneys’ fees.
5.6 Governing
Law. This Note shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to principles
of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this Note shall
be brought only in the Circuit Court of Fairfax County, Virginia or in the Alexandria Division of the United States District Court for
the Eastern District of Virginia. The parties to this Note hereby irrevocably waive any objection to jurisdiction and venue of any action
instituted hereunder and shall not assert any objection or defense based on lack of jurisdiction or venue or based upon forum non
conveniens. The Borrower and Holder waive trial by jury. The Holder shall be entitled to recover from the Borrower its reasonable
attorney's fees and costs incurred in connection with or related to any Event of Default by the Company, as defined in Article III hereof.
In the event that any provision of this Note or any other agreement delivered in connection herewith is invalid or unenforceable under
any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under
any law shall not affect the validity or enforceability of any other provision hereof or any agreement delivered in connection herewith.
Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding
in connection with this Note, any agreement or any other document delivered in connection with this Note by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to
it under this Note and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
5.7 Purchase
Agreement. By its acceptance of this Note, each party agrees to be bound by the applicable terms of the Purchase Agreement.
5.8 Remedies.
The Borrower acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the
intent and purpose of the transaction contemplated hereby. Accordingly, the Borrower acknowledges that the remedy at law for a breach
of its obligations under this Note will be inadequate and agrees, in the event of a breach or threatened breach by the Borrower of the
provisions of this Note, that the Holder shall be entitled, in addition to all other available remedies at law or in equity, and in addition
to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Note and to
enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and without any bond or other security
being required.
IN
WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by its duly authorized officer this on September 18, 2024
NATURE’S MIRACLE HOLDING INC. |
|
|
|
|
By |
|
|
|
Tie (James) Li |
|
|
Article VI. Chief Executive Officer |
|
EXHIBIT
A – WIRE INSTRUCTIONS
Bank
Name: [################]
Bank
Address: [################]
Routing
Number: [################]
Beneficiary
Account Number: [################]
Beneficiary:
[################]
Mailing
Address: [################]
EXHIBIT
B -- NOTICE OF CONVERSION
The
undersigned hereby elects to convert $_________________ principal amount of the Note (defined below) into that number
of shares of Common Stock to be issued pursuant to the conversion of the Note (“Common Stock”) as set forth below,
of NATURE’S MIRACLE HOLDING INC., a Delaware corporation (the “Borrower”) according to the conditions of the convertible
note of the Borrower dated as of September 18, 2024 (the “Note”), as of the date written below. No fee will be charged to
the Holder for any conversion, except for transfer taxes, if any.
Box
Checked as to applicable instructions:
☐
The Borrower shall electronically transmit the Common Stock issuable pursuant to this Notice of Conversion to the account of the
undersigned or its nominee with DTC through its Deposit Withdrawal Agent Commission system (“DWAC Transfer”).
Name
of DTC Prime Broker:
Account
Number:
☐
The undersigned hereby requests that the Borrower issue a certificate or certificates for the number of shares of Common Stock set
forth below (which numbers are based on the Holder’s calculation attached hereto) in the name(s) specified immediately below or,
if additional space is necessary, on an attachment hereto:
Date of conversion: |
|
|
|
|
Applicable Conversion Price: |
|
$ |
|
|
Number of shares of common stock to be issued pursuant to conversion of the Notes: |
|
|
|
|
Amount of Principal Balance due remaining under the Note after this conversion: |
|
|
|
|
[################]
By: |
|
|
Name: |
[################] |
|
Title: |
[################] |
|
Date: |
|
|
v3.24.3
Cover
|
Sep. 18, 2024 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Sep. 18, 2024
|
Entity File Number |
001-41977
|
Entity Registrant Name |
NATURE’S
MIRACLE HOLDING INC
|
Entity Central Index Key |
0001947861
|
Entity Tax Identification Number |
88-3986430
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
3281 E. Guasti Rd.
|
Entity Address, Address Line Two |
Suite 175
|
Entity Address, City or Town |
Ontario
|
Entity Address, State or Province |
CA
|
Entity Address, Postal Zip Code |
91761
|
City Area Code |
909
|
Local Phone Number |
218-4601
|
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false
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Common Stock, par value $0.0001 per share |
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Title of 12(b) Security |
Common Stock, par value $0.0001 per share
|
Trading Symbol |
NMHI
|
Security Exchange Name |
NASDAQ
|
Warrants to purchase Common Stock, at an exercise price of $11.50 per share |
|
Title of 12(b) Security |
Warrants to purchase Common Stock, at an exercise price of $11.50 per share
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Trading Symbol |
NMHIW
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Security Exchange Name |
NASDAQ
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