Form 8-K - Current report

UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): March 1, 2024

DRIVEITAWAY HOLDINGS, INC.

(Exact name of registrant as specified in its charter)

Delaware	000-52883	20-4456503
(State or other jurisdiction of incorporation or organization)	(Commission File Number)	(IRS Employer Identification No.)

3401 Market Street, Suite 200/201

Philadelphia, PA 19104

(Address of principal executive office) (Zip Code)

(856) 577-2763

(Registrants’ telephone number, including area code)

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
None	None	None

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter)

Emerging Growth Company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement.

On March 1, 2024, DIA Leasing, LLC. (the “Borrower”), a direct wholly owned subsidiary of DriveitAway Holdings, Inc. (“DWAY”), closed a $2,000,000 line of credit facility (the “Credit Facility”) with an investor (the “Lender”). In connection with the Credit Facility, a credit agreement, promissory note, security agreement and several related ancillary agreements were entered into by the parties.

The following descriptions are not complete and are qualified in their entirety by reference to the respective agreements, copies of which are filed herewith as Exhibits 10.1, 10.2, 10.3 and 4.1, respectively, and are incorporated herein by reference.

Credit Agreement

Pursuant to the Credit Agreement dated May 1, 2024 (the “Credit Agreement”), among the Borrower and the Lender, the Lender agreed to make revolving loans (the “Loans”) to the Borrower and to issue letters of credit on behalf of the Borrower. The Lender committed to provide up to $250,000 of Loans and up to $2,000,000 of letters of credit. The Borrower must use the letters of credit and the proceeds of Loans only for the purchase of motor vehicles to be used in the course of the Borrower’s business. As of the date hereof, there are no Loans or letters of credit outstanding under the Credit Agreement. The Borrower will pay a commitment fee to the Lender equal to 2.0% of the available commitments. DWAY is a guarantor on the Loans.

Promissory Note

Pursuant to the Promissory Note (the “Note”) dated May 1, 2024, Borrower promises to pay Lender the principal sum of Two Million Dollars and 00/100 ($2,000,000.00), or so much thereof as may be disbursed to, or for the benefit of the Borrower, for the sole purpose of purchasing new motor vehicles for use in Borrower’s business. Disbursements shall be at the sole discretion of the Lender. The unpaid principal of this line of credit shall bear simple interest at the rate of fifteen percent (15%) per annum. Interest shall be calculated based on the principal balance as may be adjusted from time to time to reflect additional advances.

Each advance of principal shall be called a “Draw”. Each Draw shall be in an amount no greater than Two Hundred Fifty Thousand Dollars and 00/100 ($250,000.00). The eight Draws may be taken at any time over the 180 days following execution of the Note. Each Draw will be paid over a period of eighteen (18) months from the date that the funds for each Draw are disbursed to Borrower. During the first three (3) months after disbursement, Borrower shall make payments of interest only on the funds disbursed. From month four (4) through month seventeen (17), Borrower shall make payments of principal and interest based on an amortization of forty-eight (48) months. On month eighteen (18) all outstanding principal and unpaid interest shall be paid in full. All payments are due on first day of the month following disbursement.

The Borrower shall be in default of this Note on the occurrence of any of the following events: (i) the Borrower shall fail to meet its obligation to make the required principal or interest payments hereunder or any term contained in the Loan Documents. (ii) the Borrower shall be dissolved or liquidated; (iii) the Borrower shall make an assignment for the benefit of creditors or shall be unable to, or shall admit in writing their inability to pay their debts as they become due; (iv) the Borrower shall commence any case, proceeding, or other action under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors, or any such action shall be commenced against the undersigned; (v) the Borrower shall suffer a receiver to be appointed for it or for any of its property or shall suffer a garnishment, attachment, levy or execution. Upon default of this Note, Lender may declare the entire amount due and owing hereunder to be immediately due and payable.

Security Agreement

Pursuant to a Security Agreement dated May 1, 2024, all vehicles purchased shall be titled in the name of Borrower, and Borrower consents to a lien in favor of Lender on the title to each vehicle purchased. Lender shall only be required to release the lien on each vehicle once Lender has received payment in full of all principal, interest, and any other sums due on the Draw through which the vehicle was purchased.

Warrant

As further consideration for the credit facility, DWAY issued Lender a prefunded warrant (the “Warrant”) for the purchase of up to 5,000,000 shares of DWAY’s common stock.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

To the extent applicable, the contents of Item 1.01 above are incorporated into this Item 2.03 by this reference.

Item 3.02. Unregistered Sales of Equity Securities

To the extent applicable, the contents of Item 1.01 above are incorporated into this Item 3.02 by this reference. The Warrant was issued pursuant to the private placement exemption from registration provided by Section 4(a)(2) of the Securities Act and/or by Rule 506 of Regulation D promulgated thereunder.

Item 9.01 Financial Statements and Exhibits

(c) Exhibits

Exhibit No.	Description
4.1	Prefunded Warrant
10.1	Credit Agreement
10.2	Promissory Note
10.3	Security Agreement
104	Cover Page Interactive Data File (embedded within the Inline XBRL).

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	DRIVEITAWAY HOLDINGS, INC.

Dated: May 7, 2024	By:	/s/ John Possumato
	Name:	John Possumato
	Title:	Chief Executive Officer

EXHIBIT 4.1

THIS WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR QUALIFIED UNDER ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED OR ASSIGNED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH SHARES IS EFFECTIVE UNDER THE ACT AND IS QUALIFIED UNDER APPLICABLE STATE AND FOREIGN LAW OR (II) THE TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS UNDER THE ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE AND FOREIGN LAW AND, IF THE CORPORATION REQUESTS, AN OPINION SATISFACTORY TO THE CORPORATION TO SUCH EFFECT HAS BEEN RENDERED BY COUNSEL OR (III) SUCH SECURITIES ARE SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER THE ACT.

PRE-FUNDED VESTED COMMON STOCK PURCHASE WARRANT

DRIVEITAWAY HOLDINGS, INC.

Warrant Shares:5,000,000

May 1, 2024

THIS PRE-FUNDED VESTED COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, XXXXXXX, a Delaware limited liability company (including any permitted and registered assigns, the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after May 1, 2024 after the applicable Vesting Date (as defined in Section 2(a)) but not after 11:59 PM, New York time, the fifth anniversary of the date of this Warrant (the “Termination Date”) but not thereafter, to subscribe for and purchase from Driveitaway Holdings, Inc. (f/k/a Creative Learning Corporation), a Delaware corporation (the “Company”), up to 5,000,000 shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b).

Section 1. Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Brokerage Agreement, dated May 1, 2024 among the Company and the Holder with respect to the issuance of securities, including this Warrant.

Section 2. Exercise.

a) Vesting of Warrant Shares. 1/8^th of the Warrant Shares (625,000 Warrant Shares) shall be available to vest and become exercisable whenever an aggregate amount of a draw, pursuant to a line of credit agreement, shall equal $250,000 (each such date, a “Vesting Date” and each such 1/8th of the Warrant Shares in respect of a Vesting Date, the “Vesting Warrant Shares”). The Warrant Shares will become fully vested after 180 days from the date of the Warrant so long as any available funds is able to be drawn down upon, other than restricted by default. In the event that the line of credit with the Company is terminated for any reason other than by default by the Company, Vesting Dates shall occur and no further Warrant Shares shall vest and become exercisable. In the event that the Company defaults on any terms of the line of credit, or fails to draw the full amount of the funds within the term provided in the line of credit agreement, then the full 5,000,000 Warrant Shares shall vest in the Holder. Notwithstanding anything in this Warrant to the contrary, the aggregate number of shares of Warrant Shares issuable upon exercise of this Warrant shall not exceed 5,000,000.

b) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Issue Date and on or before the Termination Date by delivery to the Company of a duly executed facsimile copy or PDF copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise substantially in the form annexed hereto as Exhibit A (the “Notice of Exercise”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined in Section 2(e)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States bank unless the cashless exercise procedure specified in Section 2(d) below is specified in the applicable Notice of Exercise. No ink-original Notice of Exercise shall be required,

nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise within one (1) Trading Day of receipt of such notice. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise delivered on or prior to 4:00 p.m. (New York City time) on the Trading Date prior to the Issue Date, which may be delivered at any time after the Issue Date, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Issue Date and the Issue Date shall be the Warrant Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by such Warrant Share Delivery Date. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. “Trading Day” shall mean any day on which the Common Stock is tradable for any period on the OTC Pink, OTCQB or on the principal securities exchange or other securities market on which the Common Stock is then being traded.

c) Exercise Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.00001 per Warrant Share, was pre-funded to the Company on or prior to the Issue Date and, consequently, no additional consideration (other than the nominal exercise price of $0.00001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining unpaid exercise price per share of Common Stock under this Warrant shall be $0.00001, subject to adjustment hereunder (the “Exercise Price”). “Person” shall mean any individual, corporation, limited liability company, partnership, association, trust or other entity or organization.

d) Cashless Exercise. This Warrant may also be exercised, in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:

(A)

= as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;

(B)

= the Exercise Price of this Warrant, as adjusted hereunder; and

(X)

= the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise.

“Bid Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:00 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.

“Trading Market” means, the principal securities market on which the Common Stock is then listed or traded.

If Warrant Shares are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the 1933 Act, the Warrant Shares shall take on the registered characteristics of the Warrants being exercised. The Company agrees not to take any position contrary to this Section 2(c).

e) Mechanics of Exercise.

i. Delivery of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Warrant Share Delivery Date. If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Exercise.

ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.

iii. Rescission Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(e)(i) by the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.

iv. Compensation for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(e)(i) above pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker 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 Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. 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 exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms hereof.

v. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company 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 Exercise Price or round up to the next whole share.

vi. Charges, Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.

vii. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.

f) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (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 exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, unexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or non-converted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 2(f) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination. 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 2(f), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Day 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 Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(f), 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 exercise of this Warrant held by the Holder and the provisions of this Section 2(e) 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 Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(f) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person as such terms are used in and construed under Rule 405 under the 1933 Act. “Common Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

Section 3. Certain Adjustments.

a) Stock Dividends and Splits. If the Company at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, or (iii) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. If the Company at any time while this Warrant is outstanding combines (by combination, reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, no adjustments to the Exercise Price or number of shares issuable upon exercise of this Warrant shall be made hereunder. Any adjustment made pursuant to this Section 3(a) 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 Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).

c) Pro Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).

d) Fundamental Transaction.

If, at any time while the Warrants are outstanding,

(i)

the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another person;

(ii)

the Company, 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 Company or another person) is completed pursuant to which holders of shares 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 50% or more of the Company’s shares of Common Stock or 50% or more of the total voting power of the Company’s shares of Common Stock;

(iv)

the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of shares of Common Stock or any compulsory share exchange pursuant to which the shares of Common Stock are effectively converted into or exchanged for other securities, cash or property, or

(v)

the Company, 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 or group of persons whereby such other person or group acquires 50% or more of the Company’s shares of Common Stock or 50% or more of the total voting power of the Company’s shares of Common Stock (each a “Fundamental Transaction”), then, upon any subsequent exercise of a Warrant, the Holder shall have the right to receive, for each share of Common Stock that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder, the number of shares of capital stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, or depositary shares representing those shares, and any additional 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 Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction.

Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided, however,

that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s Board of Directors, Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration (and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to the holders of shares of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of cash, stock or any combination thereof, or whether the holders of shares of Common Stock are given the choice to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of shares of Common Stock of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders will be deemed to have received common stock of the Successor Entity (which Entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction.

“Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii) the highest VWAP during the period beginning on the Trading Day immediately preceding the announcement of the applicable Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(e) and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later of (i) three (3) Trading Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction.

The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”), to assume in writing all of the obligations of the Company under this Warrant in accordance with the provisions of this Section 3(d) pursuant to written agreements in form reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to such Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock prior to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value this Warrant had immediately prior to the consummation of such Fundamental Transaction). Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant with the same effect as if such Successor Entity had been named as the Company herein.

e) Calculations. All calculations under this Section 3 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 3, 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 treasury shares, if any) issued and outstanding.

f) Notice to Holder.

i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.

ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock 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 Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number or email address as it shall appear upon the Warrant Register of the Company, at least 20 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. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

Section 4. Transfer of Warrant.

a) Transferability. This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.

b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.

c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.

Section 5. Miscellaneous.

a) No Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(e)(i), except as expressly set forth in Section 3. Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise,” and to receive the cash payments contemplated pursuant to Sections 2(e)(i) and 2(e)(iv), in no event will the Company be required to net cash settle an exercise of this Warrant.

b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.

c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.

d) Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).

Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.

Before taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or bodies having jurisdiction thereof.

e) Jurisdiction. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with the provisions of the Brokerage Agreement.

f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, and the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.

g) Non-waiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant or the Brokerage Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.

h) Notices. Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in accordance with the notice provisions of the Brokerage Agreement.

i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.

j) Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for specific performance that a remedy at law would be adequate.

k) Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.

l) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and the Holder of this Warrant, on the other hand.

m) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.

n) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.

(Signature Page Follows)

IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.

	DRIVEITAWAY HOLDINGS, INC.

	By:
	Name:	John Possumato
	Title:	Chief Executive Officer

EXHIBIT A
NOTICE OF EXERCISE

TO: DRIVEITAWAY HOLDINGS, INC.

(1) The undersigned hereby elects to purchase _______________Warrant Shares of the Company pursuant to the terms of the attached Warrant dated May 1, 2024 (only if exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.

(2) Payment shall take the form of (check applicable box):

[__] in lawful money of the United States, payable to the Company; or

[__] if permitted the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(d), to exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(d).

(3) Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:

_______________________________________________________________

The Warrant Shares shall be delivered to the following DWAC Account Number:

__________________________________________________

(4) Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.

[SIGNATURE OF HOLDER]

Name of Investing Entity: ________________________________________________________________

Signature of Authorized Signatory of Investing Entity: _________________________________________

Name of Authorized Signatory: ____________________________________________________________

Title of Authorized Signatory: _____________________________________________________________

Date: ________________________________________________________________________________

EXHIBIT B

ASSIGNMENT FORM

(To assign the foregoing Warrant, execute this form and supply required information. Do not use this form to exercise the Warrant to purchase shares.)

FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to

Name: _______________________________________________________________________________

Address: ____________________________________________________________________________

Phone Number: ________________________________________________________________________

Email Address: ________________________________________________________________________

Dated: _______________________________________________________________________________

Holder’s Signature: _____________________________________________________________________

Holder’s Address: _______________________________________

________________________________________

________________________________________

EXHIBIT 10.1

Line of Credit Agreement for Purchase of Motor Vehicles

For value received and in further consideration of the granting by XXXXXXXX, referred to herein as LENDER, to DIA Leasing, LLC, a limited liability company organized and existing under the laws of the state of Florida, with its principal office located at 7901 4^th Street North, Suite 300, St. Petersburg, FL 33702, referred to herein as BORROWER, of a line of credit, referred to herein as the LOAN, BORROWER represents and warrants to and agrees with LENDER as follows:

The Loan

Purpose.

The purpose of the LOAN is to finance the purchase of motor vehicles to be used in the course of BORROWER’s business within the state of Florida. LENDER will only tender funds directly to car dealerships or other suppliers of new passenger vehicles.

Amount.

Subject to the terms contained herein, in the Security Agreement, Promissory Note, Guaranty, and other documents executed concurrently with this Agreement, referred to hereinafter as the LOAN DOCUMENTS) LENDER will lend to BORROWER, and BORROWER will borrow from LENDER up to $2,000,000.00 with interest at 15% per annum.

Evidence of Loan.

The Loan and the terms of repayment of it, including the rate of interest, shall be evidenced by a note or notes, signed by BORROWER.

Security and Guaranty.

The payment of the Loan shall be secured and guaranteed by the SECURITY AGREEMENT and the GUARANTIES, in addition to which, all monies and other property at any time in the possession of LENDER which BORROWER either owns or has the permission of the owner to pledge with or otherwise hypothecate to LENDER, including, but not limited to, motor vehicles, any deposits, balances of deposits or other sums at any time credited by or due from LENDER, shall at all times be collateral security for all of the liabilities, obligations and undertakings of BORROWER to LENDER, direct or indirect, absolute or contingent, now existing or later arising or acquired, including, but not limited to, the payment of the Loan.

In addition to the foregoing, LENDER shall cause to be placed, a lien of the title of every motion vehicle purchased by BORROWER utilizing funds of LENDER.

Warranties and Representations

BORROWER represents and warrants to LENDER (which representations and warranties will survive the making of the Loan) that:

a. Entity Existence.

BORROWER is a limited liability company organized and existing under the laws of the state of Florida, and that said company is in good standing under the laws of the State of Florida. BORROWER is duly licensed or qualified as a foreign company in all states in which the nature of its property owned or Business transacted by it makes such licensing or qualification necessary. BORROWER has obtained all required permits authorizations and licenses, without unusual restrictions or limitations, to conduct the Business in which BORROWER is presently engaged, all of which are in full force and effect.

b. Corporate Authority and Power.

The execution, delivery and performance of this Agreement, any note or security Agreement, or any other instrument or document at any time required in connection with the Loan, are within the corporate powers of BORROWER, and not in contravention of law, the articles of organization or bylaws of BORROWER or any amendment of the same, or of any indenture, Agreement or undertaking to which BORROWER is a party or may otherwise be bound, and each such instrument and document represent a valid and binding obligation of BORROWER and is fully enforceable according to its terms. BORROWER will, at the request of LENDER at any time and from time to time, furnish LENDER with the opinion of counsel for BORROWER with respect to any or all of the foregoing or other matters, such opinion to be in substance and form satisfactory to LENDER.

c. Financial Status.

All financial statements and other statements previously or in the future given by BORROWER to LENDER in respect of this Agreement are or will be true and correct, subject to any limitation stated in them, consistent with any prior statements furnished to LENDER, and prepared in accordance with generally accepted accounting principles to represent fairly the condition of BORROWER as of the date of the statement.

d. Litigation.

There is not now pending or threatened against BORROWER any action or other proceedings or any claim in which BORROWER has any monetary or other proprietary interest nor do any of the executive or managing personnel of BORROWER know of any facts which may give rise to any such litigation, proceeding or claim, except: (describe).

Events of Default.

No event of default specified in Section 5 of this Agreement, and no event which, with the lapse of time or notice, would become such an event of default, has occurred and is continuing.

Title to Motor Vehicles.

BORROWER will cause all motor vehicles being purchased to be titled in the name of BORROWER, and shall not, while any lien in favor of LENDER exists, attempt to transfer the title to any other party. BORROWER shall protect and defend the vehicles and their titles against any third party seeking to impair BORROWER’s ownership of such vehicles.

Taxes.

BORROWER shall be solely liable for any and all taxes, fines, penalties, and costs associated with each vehicle. Failure to timely pay any such amounts shall constitute an event of default. LENDER, at LENDER’s option, may pay any amounts in order to protect its interest in the vehicle, and any such amounts advanced on behalf of BORROWER, shall be due and payable immediately and shall bear interest at the highest amount allowed by law until paid in full.

Affirmative Covenants.

BORROWER agrees that until payment in full of the Loan and performance of all of its other obligations under this Agreement, BORROWER will, unless LENDER otherwise consents in writing, comply with the following:

Commitment Fee.

Subject to the terms of this Agreement LENDER commits itself, until a date that is six months from the date that this Agreement and the LOAN DOCUMENTS are signed, to lend to BORROWER at any time or from time to time a sum or sums in the aggregate amount of $2,000,000.00, and BORROWER agrees to pay to XXXXXXXXXX, LLC, at the time of funding each disbursement, a commitment fee of 2% of the amount of each disbursement.

Financial Statements.

BORROWER will furnish to LENDER quarterly statements prepared by BORROWER within 15 days of the close of each quarter, and, within 30 days after the close of each fiscal year, an annual audit prepared by the equity method and certified by public accountants selected by BORROWER and approved by LENDER, together with a certificate by such accountants that at such audit date BORROWER was acting in compliance with the terms of this Agreement. BORROWER shall indicate on the statements all guarantees made by it. BORROWER will upon request permit a representative of LENDER to inspect and make copies of BORROWER’s books and records at all reasonable times.

Insurance.

BORROWER will maintain insurance policies on each motor vehicle purchased with proceeds of the LOAN, for the full value of each motor vehicle from all perils and all liabilities, and such other insurance as LENDER may reasonably require as consistent with sound business practice and with companies satisfactory to LENDER, which policies will show the LENDER as loss payee.

Taxes and Other Liens.

BORROWER will comply with all statutes and government regulations and pay all taxes, assessments, governmental charges or levies, or claims for repairs, labor, parts, storage, and other obligations made against it which, if unpaid, might become a lien or charge against BORROWER or on the motor vehicles on which LENDER shall have liens, except liabilities being contested in good faith and against which, if requested by LENDER, BORROWER will set up reserves satisfactory to LENDER.

Maintenance of Company Existence and Maintenance of Collateral.

BORROWER will maintain its existence and comply with all applicable statutes, licensing requirements, rules and regulations and continue to conduct its Business as presently conducted. In addition, BORROWER shall be solely responsible for all necessary and manufacturer recommended maintenance of each motor vehicle purchased through the LOAN, and for every motor vehicle provided to LENDER as collateral for the LOAN, regardless of whether LOAN funds were used for its purchase. Maintenance requirements must be strictly followed, failure to do so shall be a material default in the LOAN DOCUMENTS. Maintenance shall include repairs of any nature. BORROWER must maintain all vehicles in good operating condition at all times that this Agreement is in effect.

Notice of Default.

Within five (5) Business days of becoming aware of (i) the existence of any condition or event which constitutes a default under Section 5 of this Agreement; or (ii) the existence of any condition or event which with notice or the passage of time, will constitute a default under Section 5 of this Agreement, BORROWER will provide LENDER with written notice specifying the nature and period of existence of the same and what action BORROWER is taking or proposes to take with respect to the same.

Use of Proceeds.

BORROWER shall use the proceeds of the Loan under this Agreement solely for the purchase of motor vehicles to be used in BORROWER’s Business, and for no other purpose.

Further Assurances.

BORROWER will execute and deliver to LENDER any writings and do all things necessary, effectual or reasonably requested by LENDER to carry into effect the provisions and intent of this Agreement.

Negative Covenants

Without the prior written approval of LENDER, BORROWER will not:

Consolidation, Merger or Acquisition.

Participate in any merger or consolidation or alter or amend the capital structure of BORROWER, including, but not limited to, the issuance of additional stock, or make any acquisition of the Business of another.

Dividends.

Pay any dividends, including a stock dividend, or make any distributions, in cash or otherwise, including splits of any kind, to any officer, stockholder or beneficial owner of BORROWER, other than salaries.

Encumbrances.

BORROWER shall not permit any lien, other than that of LENDER, to exist on any item of collateral, and shall at all times be current in payment of taxes, registration, license plate fees, and any other fees, fines, or penalties which may impair the use of any item of collateral, or subject any item of collateral to impound. Failure to comply with the foregoing shall be an event of default.

Disposition of Assets, Guarantees, Loans, Advances.

Sell, transfer or assign any assets of BORROWER other than in the ordinary course of Business or, except as specifically permitted in this Agreement (i) sell or transfer or assign any of BORROWER’s accounts receivable with or without recourse; (ii) guarantee or become surety for the obligations of any person, firm, or corporation; or (iii) make any loans or advances.

Liabilities.

Permit its total short and long term liabilities including borrowings to impair BORROWER’s ability to repay the LOAN.

Compensation.

Pay to its officers and directors aggregate compensation in any fiscal year which impairs BORROWER’s ability to repay the LOAN.

Employee Retirement Investment Security Act of 1974 (“ERISA”).

Permit any pension plan to (i) engage in any prohibited transaction; (ii) fail to report to LENDER a reportable event; (iii) incur any accumulated funding deficiency; or (iv) terminate its existence at any time in a manner which could result in the imposition of a lien on the property of the BORROWER. (The quoted terms are defined in Sections 2003(c),302, and 4003, respectively, of ERISA, as amended.)

Default.

If any one or more of the following events of default shall occur at any time, LENDER shall have the right to declare any or all liabilities or obligations of BORROWER to LENDER immediately due and payable without notice or demand:

Any warranty, representation or statement made or furnished to LENDER by or on behalf of BORROWER or any guarantor or surety for BORROWER was in any material respect false when made or furnished;

A failure to pay or perform when due any obligation, liability or covenant of BORROWER or of any guarantor or surety for BORROWER, under this Loan Agreement or any other indebtedness or obligation for borrowed money, or if such indebtedness or obligation shall be accelerated, or if there exists any event of default under any such instrument, document or Agreement evidencing or securing such indebtedness or obligation, including, but not limited to, failure to perform the terms of this Agreement or of the note or notes evidencing the Loan;

The commencement of any proceeding under any bankruptcy or insolvency laws by or against BORROWER, the appointment of a trustee, receiver, or custodian and, if any such proceeding is involuntary, such proceeding has not been dismissed and all trustees, receivers, or custodians discharged within 30 days of its commencement or their appointment;

The service upon LENDER of a writ in which LENDER is named as trustee or BORROWER or any guarantor or surety for BORROWER;

The liquidation, termination or dissolution of BORROWER or its ceasing to carry on actively its present Business; and, if any guarantor or surety for BORROWER is a corporation, trust or partnership, the liquidation, termination or dissolution of any such organization or its ceasing to carry on actively its present business;

The death any guarantors or surety for BORROWER, and if any guarantor or surety for BORROWER is a partnership, the death of any partner; or

A judgment or judgments of the payment of money aggregating in excess of $50,000 is outstanding against BORROWER or any guarantor or surety for BORROWER and any one of such judgments has been outstanding for more than 30 days from the date of its entry and has not been discharged in full or stayed.

Miscellaneous

Other Agreements.

This Agreement is supplementary to every other Agreement between BORROWER and LENDER and shall not be so construed as to limit or otherwise derogate from any of the rights or remedies of LENDER or any of the liabilities, obligations or undertakings of BORROWER under any such Agreement, nor shall any contemporaneous or subsequent Agreement between BORROWER and LENDER be construed to limit or otherwise derogate from any of the rights or remedies of LENDER or any of the liabilities, obligations or undertakings of BORROWER under this Agreement unless such other Agreement specifically refers to this Agreement and expressly so provides. This Agreement and the covenants and Agreements contained in it shall continue in full force and effect and shall be applicable not only with respect to the Loan, but also to all other obligations, liabilities and undertakings of BORROWER to LENDER whether direct or indirect absolute or contingent, due or to become due, now existing or later arising or acquired, until all such obligations, liabilities and undertakings have been paid or otherwise satisfied in full.

Waivers.

No delay or omission on the part of LENDER in exercising any right under this Agreement shall operate as a waiver of such right or any other right, and waiver on any one or more occasions shall not be construed as a bar to or waiver of any right or remedy of LENDER on any future occasion.

Expenses.

BORROWER will pay or reimburse LENDER for all reasonable expenses, including attorney’s fees, which LENDER may in any way incur in connection with this Agreement or any other Agreement between BORROWER and LENDER or with any Loan or which result from any claim or action by any third person against LENDER which would not have been asserted were it not for LENDER’s relationship with BORROWER under this Agreement or otherwise.

Notices

Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

Governing Law

This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Florida.

Successors and Assigns.

This Agreement shall be binding on BORROWER’s legal representatives, successors and assigns and shall inure to the benefit of LENDER’s successors and assigns.

The parties have executed this Agreement on May 1, 2024.

LENDER		BORROWER
XXXXXXXXX		DIA Leasing, LLC


By: XXXXX		By: DRIVEITAWAY HOLDINGS,
As its: XXXXX		INC.
By: XXXXXXXX		As Its: Authorized Member

		By: John Possumato, as Chief
		Executive Officer of Driveitaway
		Holdings, Inc.

EXHIBIT 10.2

LINE OF CREDIT PROMISSORY NOTE

$2,000,000.00

Date: May 1, 2024

FOR VALUE RECEIVED, DIA Leasing, LLC, (“Borrower”) promises to pay to the order of XXXXXXXXXX (“Lender”), the principal sum of Two Million Dollars and 00/100 ($2,000,000.00), or so much thereof as may be disbursed to, or for the benefit of the Borrower.by Lender in Lender’s sole and absolute discretion. It is the intent of the Borrower and Lender hereunder to create a line of credit agreement between Borrower and Lender whereby Borrower may borrow up to $2,000,000.00 from Lender for the purpose of purchase new motor vehicles for use in Borrower’s business; provided, however, that Lender has no obligation to lend Borrower any amounts hereunder and the decision to lend such money lies in the sole and complete discretion of the Lender. The Lender may refuse to make any requested advance if an event of default has occurred and is continuing hereunder either at the time the request is given or the date the disbursementis to be made, or if an event has occurred or condition exists which, with the giving of notice or passing of time or both, would constitute an event of default hereunder as of such dates. This Note is to be read in conjunction with the Line of Credit Agreement, Security Agreement, and all other documents of even date herewith related to this loan transaction, all of which shall collectively be referred to as the “Loan Documents”.

INTEREST & PRINCIPAL: The unpaid principal of this line of credit shall bear simple interest at the rate of Fifteen percent (15%) per annum. Interest shall be calculated based on the principal balance as may be adjusted from time to time to reflect additional advances made hereunder.

DRAWS: Each advance of principal shall be called a “Draw”. Each Draw shall be in an amount no greater than Two Hundred Fifty Thousand Dollars and 00/100 ($250,000.00). The Payment terms below shall be applicable to each Draw. The eight Draws may be taken at any time over the 180 days following execution of this Note and Loan Documents. After the 180^th day following execution of this Note and Loan Documents, any funds not disbursed to Borrower, will no longer be available. This line of credit is not revolving. Once disbursed, funds will not be made available again even if repaid in full prior to the end of the Term. Lender will have up to seven (7) business days to fund each Draw from the time that Lender receives a completed schedule of the motor vehicles being purchased as required in the Security Agreement of even date herewith.

PAYMENTS: Each Draw will be paid over a period of eighteen (18) months from the date that the funds for each Draw are disbursed to Borrower. During the first three (3) months after disbursement, Borrower shall make payments of interest only on the funds disbursed. From month four (4) through month seventeen (17), Borrower shall make payments of principal and interest based on an amortization of forty-eight (48) months. On month eighteen (18) all outstanding principal and unpaid interest shall be paid in full. This shall be known as the Maturity Date.

All payments are due on first day of the month following disbursement. If disbursement is made on any day other than the first day of the month, then at the time of disbursement, Lender shall withhold per diem interest from the amount disbursed, based on the per diem interest due on the disbursement multiplied by the number of days between disbursement and the first day of the next month.

Payments not made on the date due shall be subject to a late fee of ten percent (10%) of the amount due. If a payment is not made on the fifth (5^th) day after becoming due, Borrower shall be in default, as defined below.

PREPAYMENT: Each disbursement may be prepaid in whole or in part, but shall be accompanied by a payment of interest equivalent to the interest that would have been due had the funds been repaid in accordance with the schedule recited hereinabove. In no event shall the prepayment of funds reduce the amount of interest due on this Note.

DISBURSEMENT OF FUNDS: Funds shall be disbursed by Lender directly to the motor vehicle dealership or other vendor from which Borrower purchases the vehicle to be funded through this line of credit. The funds being disbursed shall be applied to eighty percent (80%) of the purchase price of each vehicle being purchased. Another lender may finance the remaining twenty percent (20%) of the purchase price, but only Lender shall be entitled to a lien on each vehicle.

SECURITY: This Note shall be secured by a lien on the title of each vehicle being purchased as more particularly described in the Security Agreement. No subordinate liens shall be allowed, and Borrower shall fully indemnify Lender against any subordinate liens. Lender shall release the lien on each vehicle upon payment in full of all funds, including interest costs and fees for each vehicle being released.

DEFAULT: The Borrower shall be in default of this Note on the occurrence of any of the following events: (i) the Borrower shall fail to meet its obligation to make the required principal or interest payments hereunder or any term contained in the Loan Documents. (ii) the Borrower shall be dissolved or liquidated; (iii) the Borrower shall make an assignment for the benefit of creditors or shall be unable to, or shall admit in writing their inability to pay their debts as they become due; (iv) the Borrower shall commence any case, proceeding, or other action under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors, or any such action shall be commenced against the undersigned; (v) the Borrower shall suffer a receiver to be appointed for it or for any of its property or shall suffer a garnishment, attachment, levy or execution.

REMEDIES: Upon default of this Note, Lender may declare the entire amount due and owing hereunder to be immediately due and payable. Lender may also use all remedies in law and in equity to enforce and collect the amount owed under this Note, as more particularly described in the Security Agreement.

Borrower hereby waives demand, presentment, notice of dishonor, diligence in collecting, grace and notice of protest.

This Note may be signed electronically, and shall be fully enforceable against the Borrower.

	BORROWER:

	DIA Leasing, LLC

	By: DRIVEITAWAY HOLDINGS,
	INC.
	As Its: Authorized Member

	By: John Possumato, as Chief Executive
	Officer of Driveitaway Holdings, Inc.

EXHIBIT 10.3

Security Agreement For Purchase of Motor Vehicles Securing a Line of Credit

Security Agreement (this Agreement) made on May 1, 2024, between DIA Leasing LLC, a limited liability company organized and existing under the laws of the state of Florida, with its principal office located at 7901 4^th Street North, Ste 300, St. Petersburg, FL 33702 referred to herein as Debtor, and XXXXXXX, referred to herein as Secured Party.

Whereas, Debtor has applied for a line of credit from Secured Party; and

Whereas, Secured Party has agreed to grant a line of credit to Debtor on the terms and conditions and the security as set forth in this Agreement, and in the loan documents of even date herewith (the “Loan Documents”);

Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

I. Loans to Debtor.

A. Secured Party shall lend to Debtor, on the request of Debtor, at any time or from time to time within 180 days from the date of this Agreement, sums that in the aggregate do not exceed the principal amount of $2,000,000.00 in the aggregate.

B. The obligation of Secured Party to make each such loan is subject to the condition that all obligations of Debtor to Secured Party under this Agreement on or before the date of making such loan shall have been fully performed, and that no proceedings instituted by or against Debtor under any insolvency, bankruptcy or reorganization laws shall be then pending.

C. Each Draw, as that term has been defined in the Note, shall be evidenced by a schedule in the form of Exhibit A, which is attached to and by this reference made a part of this Agreement, and which shall detail the vehicle description (make, model, and color), Vehicle Identification Number (VIN) of each vehicle being purchased, the price being paid for each vehicle and the vendor of each vehicle, as well as copies of invoices from the motor vehicle dealership showing all of the foregoing information. The seller of the vehicles shall also provide wire instructions.

D. Each Draw shall bear interest at the rate of fifteen 15% per year from the date of the disbursement until paid.

E. All payments shall be made monthly based upon the payment schedule detailed in the Note.

II. Vehicles as Collateral. All vehicles purchased shall be titled in the name of Debtor, and Debtor hereby consents to a lien in favor of Secured Party on the title to each vehicle purchased. Secured Party shall only be required to release the lien on each vehicle once Secured Party has received payment in full of all principal, interest, and any other sums due on the Draw through which the vehicle was purchased. However, the Secured Party may grant release of the lien encumbering individual vehicles based upon the purchase price of the vehicle and the Secured Party’s calculation of payments applied to the vehicle. Calculations and determination of adequate security shall be subject only to the Secured Party’s reasonable discretion.

In the event of a default by Debtor on any term contained in the Loan Documents, Secured Party shall be entitled to immediate possession of all vehicles including through self-help repossession.. Alternatively, Secured Party may take possession only of so many of the vehicles as Secured Party shall deem necessary, in Secured Party’s reasonable discretion, to make Secured Party whole in light of Debtor’s default. This Agreement shall constitute an irrevocable power of attorney granted to Secured Party, so long as Secured Party holds any liens against motor vehicles titled to Debtor, to exercise ownership and control over such motor vehicles in the event of default by Debtor, and in the event that any such vehicle becomes impounded for any reason.

III. Draws to Debtor. Draws to Debtor shall be subject to the terms of the Note of even date herewith.

IV. Maintenance of Vehicles. All vehicles purchased by Debtor shall be maintained by Debtor, and Debtor shall be solely responsible for all necessary and manufacturer recommended maintenance of each motor vehicle provided as collateral pursuant to this Agreement. Maintenance requirements must be strictly followed, failure to do so shall be a material default in the terms of this Agreement. Maintenance shall include repairs of any nature. Debtor must maintain all vehicles in good operating condition at all times that this Agreement is in effect.

V. Insurance on Vehicles. Debtor will maintain insurance policies on each motor vehicle provided as collateral pursuant to this Agreement, for the full value of each motor vehicle from all perils and all liabilities, and such other insurance as the Secured Pary may reasonably require as consistent with sound business practice and with companies satisfactory to the Secured Party, which policies will show the Secured Party as loss payee.

Indemnification of Secured Party. Debtor agrees to indemnify and hold the Secured Party, its officers, directors, employees, members, and attorneys harmless from any liability, loss or damage they may suffer as a result of claims, demands, costs or judgments against them arising out of the leasing, sale, or use of motor vehicles purchased through this Agreement or otherwise purchased using funds provided by the Secured Party. Said indemnification shall include the cost of legal advice and all legal costs and fees incurred by the Secured Party its officers, directors, employees, members, and attorneys, whether or not suit is brought, and at all levels of litigation or arbitration, including all appeals.

VI. Representations and Warranties of Debtor. Debtor represents and warrants that:

A. Debtor has the full authority to purchase, own, lease and sell motor vehicles, and at all times shall be in compliance with applicable state and federal law.

B. No lien, title retention device or security interest of any kind exists or will be permitted to exist in favor of any other person or entity in respect to the motor vehicles provided as collateral while this Agreement is in effect.

C. All financial statements furnished to Secured Party will be prepared in accordance with generally accepted principals of accounting, and will accurately reflect the financial condition of Debtor as of the dates of the statements.

VII. Undertakings by Debtor. Debtor undertakes and agrees that:

A. Debtor will execute and deliver to Secured Party concurrently with this Agreement, for filing under the provisions of the Uniform Commercial Code of Florida, such financing statements as Secured Party may request and from time to time execute and deliver such additional instruments or documents as Secured Party may reasonably request to the end that this Agreement have its intended effect.

B. While Debtor is indebted to Secured Party, Debtor will permit agents of Secured Party to examine and make extracts from the books and records of Debtor, and at all times, permit such agents to have access to any applications and programs which show the location, payment history, insurance coverage, and maintenance of every motor vehicle on which the Secured Party may have a lien.

C. Debtor shall reimburse Secured Party for any and all expenses, including court cost and attorneys’ fees, incurred in and about the checking, handling, as well as the recovery of any of the motor vehicles from any person whomsoever, the enforcement or defense of this Agreement, and the enforcement of any Agreement relating to any of the above, all of which shall constitute indebtedness of Debtor secured by this Agreement.

D. Debtor will furnish from time to time such collateral reports, financial statements, and audit reports prepared and certified by such persons and in such form as Secured Party may reasonably request.

E. Debtor will enroll each vehicle in toll management and ticket protection and provide access to all information to the Secured Party.

F. Debtor shall provide immediate written notice to the Secured via email or overnight courier service in the event that any vehicle is impounded, stolen, or involved in an accident.

G. Debtor will cooperate with Secured Party to retrieve any impounded vehicle, as well as assisting the Secured Party recovering vehicles after a default by Debtor on any of the terms of this Agreement or the Loan Documents.

VIII. Events of Default. At the option of Secured Party, Secured Party’s obligations under this Agreement shall immediately terminate and all indebtedness of Debtor shall immediately become due and payable without demand or notice of any kind, which are here waived, on the occurrence of any one or more of the following events:

A. Any representation or warranty under this Agreement shall be materially false.

B. Any indebtedness of Debtor shall not be paid when due.

C. Debtor shall fail to perform any of its undertakings or Agreements under this Agreement.

D. Debtor shall fail to perform any of Debtor’s obligations or fulfill Debtor’s Agreements contained in a repurchase Agreement between Secured Party and Debtor of even date with this Agreement.

E. Any court of competent jurisdiction shall make an order adjudicating the bankruptcy of Debtor or appointing a trustee or receiver of Debtor or any substantial part of Debtor’s property or approving a petition for, or effecting an arrangement in bankruptcy, a reorganization pursuant to bankruptcy laws or any other judicial modification or alteration of the rights of Secured Party or of other creditors.

F. Debtor shall file any petition or take or consent to any action, seeking any such judicial order as outlined in Paragraph E making assignment for the benefit of Debtor’s creditors, or have failed within 30 days to pay or otherwise discharge any one or more judgments or attachments against Debtor, exceeding $50,000.00 in the aggregate, unless such judgment is in good faith being appealed.

IX.   Exercise of Rights by Secured Party. Secured Party shall have and may exercise all of the rights, powers, privileges, and remedies (all of which are collectively referred to as remedies) contained in the Loan Documents and under this Agreement, or that may now or later be provided by law for the holder of a security interest. No delay or omission of Secured Party to exercise any such remedy shall impair any remedy or be a waiver of any event of default under this Agreement. Any single or partial exercise of any such remedies shall not preclude other or further exercise of them. No waiver of any remedy shall be valid unless in writing signed by Secured Party and then only to the extent specifically set forth.

X. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

XI. Notices. Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

XII. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Florida.

XIII. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

XIV. Compliance with Laws. In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

WITNESS our signatures as of the day and date first above stated.

XXXXXXX		DIA Leasing, LLC


By: XXXXXXXX		By: DRIVEITAWAY HOLDINGS, INC.

		As Its: Authorized Member
By: XXXXXXXX		By: John Possumato, as Chief Executive Officer of Driveitaway Holdings, Inc.

Cover	Mar. 01, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Mar. 01, 2024
Entity File Number	000-52883
Entity Registrant Name	DRIVEITAWAY HOLDINGS, INC.
Entity Central Index Key	0001394638
Entity Tax Identification Number	20-4456503
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	3401 Market Street
Entity Address, Address Line Two	Suite 200/201
Entity Address, City or Town	Philadelphia
Entity Address, State or Province	PA
Entity Address, Postal Zip Code	19104
City Area Code	(856)
Local Phone Number	577-2763
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	false