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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 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):
February 16, 2024
Bespoke Extracts, Inc. |
(Exact name of registrant as specified in its charter) |
Nevada |
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000-52759 |
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20-4743354 |
(State or other jurisdiction
of incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
12001
E.33rd Ave Suite O
Aurora,
CO 80010
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code
(855) 633-3738
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
| ☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: 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 February 16, 2024, Bespoke Extracts, Inc. (the “Company”)
entered into and closed securities purchase agreements with investors pursuant to which the Company issued and sold to the investors an
aggregate of $100,000 in 15% Senior Secured Notes due February 15, 2025 (the “Notes”), and warrants to purchase an aggregate
of 100,000 shares of common stock, for an aggregate purchase price of $100,000. The Notes are senior in terms of priority and liquidation
to all other existing debt obligations of the Company. The warrants have a term of two years and an exercise price of $0.11.
In connection with the foregoing, the Company relied upon the exemption
from registration provided by Section 4(a)(2) under the Securities Act of 1933, as amended, and/or Regulation D thereunder, for transactions
not involving a public offering.
The foregoing description of the Notes does not purport to be complete
and is qualified in its entirety by reference to the full text of the Purchase Agreement, the Form of Note and the Form of Warrant, which
are filed as Exhibit 10.1, 10.2 and 10.3 to this Current Report on Form 8-K and are incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation.
The information under Item 1.01 is incorporated by reference into this
Item 2.03.
Item 3.02 Unregistered Sales of Equity Securities.
The information under Item 1.01 is incorporated
by reference into this Item 3.02.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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Bespoke Extracts, Inc. |
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Date: February 20, 2024 |
By: |
/s/ Michael Feinsod |
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Michael Feinsod
Chief Executive Officer |
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Exhibit 10.1
BESPOKE EXTRACTS,
INC.
2024 Securities PURCHASE AGREEMENT
This Securities Purchase Agreement
(the “Agreement”) is made as of the ____ day of February 2024 by and between BESPOKE EXTRACTS, INC., a Nevada
corporation (the “Company”) and the Purchasers identified on the signature pages hereto (each a “Purchaser”
and together the “Purchasers”).
RECITALS
The Company desires to issue
and sell, and each Purchaser desires to purchase, a promissory note in substantially the form attached to this Agreement as Exhibit
A (the “Note”), and a warrant to purchase shares of the Company’s $0.001 par value common stock
(the “Common Stock”) at $0.11 per share, in the form attached to this Agreement as Exhibit B (the “2024
Warrant” and together with this Agreement, the Notes and the Warrants, the “Transaction Documents”). The
Notes, the 2024 Warrants and the shares of Common Stock issuable upon conversion or exercise thereof (and the securities issuable
upon conversion of such equity securities) are collectively referred to herein as the “Securities.” The
Company is issuing up to $1,000,000 principal amount of Notes and the accompanying Warrants (the “Offering”).
AGREEMENT
In consideration of the mutual
promises contained herein and other good and valuable consideration, receipt of which is hereby acknowledged, the parties to this Agreement
agree as follows:
1. Purchase
and Sale of Notes and Warrants.
(a) Sale
and Issuance of Notes and Warrants. Subject to the terms and conditions of this Agreement, each Purchaser agrees to purchase at
the Closing (as defined below) and the Company agrees to sell and issue to each Purchaser (i) a Note in the principal amount set forth
opposite such Purchaser’s name on the signature page hereto, (ii) subject to the provisions of Section 2 below, a 2024 Warrant to
purchase the number of shares of Common Stock equal to (A) the original principal amount of the Note (expressed as a number,
rather than a dollar value), each as set forth opposite such Purchaser’s name on Exhibit A, multiplied by (B) 100.0%. Each
Warrant shall be exercisable for a period of two (2) years after the Closing. The aggregate purchase price of each Note and Warrant shall
be the amount set forth opposite such Purchaser’s name on Exhibit A. The Company’s agreements with each of the Purchasers
are separate agreements, and the sales of the Notes and Warrants to each of the Purchasers are separate sales.
2. Closing;
Delivery.
(a) The purchase
and sale of the Notes and Warrants shall take place remotely via the exchange of documents and signatures, or at such other
place as the Company and the Purchasers mutually agree upon, orally or in writing, as soon as practicable following such time that the
Purchasers have agreed to purchase at such closing an aggregate amount of Units equal to at least $100,000 (which time and
place are designated as the “Initial Closing”). The Initial Closing shall occur by February 28, 2024 unless extended
for a period of up to 60 days at the Company’s discretion. Officers and directors of the Company and their affiliates may purchase
securities in the Offering. In the event there is more than one closing, the term “Closing” shall apply to each such closing,
unless otherwise specified herein.
(i) At
each Closing, the Company shall deliver to each Purchaser the Note Stock and Warrants to be purchased by such Purchaser against (A) payment
of the purchase price therefor by check payable to the Company, by wire transfer to a bank designated by the Company, cancellation of
indebtedness, or any combination thereof and (B) delivery of counterpart signature pages to this Agreement. In the event that payment
by a Purchaser is made, in whole or in part, by cancellation of indebtedness, then such Purchaser shall surrender to the Company for cancellation
at such Closing any evidence of such indebtedness or shall execute an instrument of cancellation in form and substance acceptable to the
Company.
(ii) Until
such time as the aggregate proceeds from the Offering equal a total of one million dollars ($1,000,000.00), the Company may sell additional
Units to such persons or entities as determined by the Company, or to any Purchaser who desires to acquire additional Units, until the
termination date of the Offering of June 30, 2024 subject to the right of the Company to extend or terminate the Offering in its discretion.
All such sales shall be made on the terms and conditions set forth in this Agreement. The Company, in its sole discretion, shall determine
the time and place of each Closing subsequent to the Initial Closing. For purposes of this Agreement, and all other agreements contemplated
hereby, any additional purchaser so acquiring Units shall be deemed to be a “Purchaser” for purposes of this Agreement, and
any shares of notes and warrants so acquired by such additional purchaser shall be deemed to be “Notes,” “Warrants”
and “Securities,” as applicable.
3. Representations
and Warranties of the Company. The Company hereby represents and warrants to each Purchaser that, as of the date hereof:
(a) Organization,
Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada and has all requisite corporate power and authority to carry on its business as described in the Company’s
public filings with the Securities and Exchange Commission (the “Commission”). The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure so to qualify would have a material adverse effect on its business
or properties.
(b) Capitalization.
The authorized and issued and outstanding capital of the Company consists, or will consist immediately prior to the Initial Closing, of
(i) Stock
Authorized and Outstanding 3,000,000,000 shares of Common Stock, par value $0.001 authorized, of which 10,168,152 shares are issued
and outstanding, and 50,000,000 shares of preferred stock, par value $0.001 authorized, of which 1,000 shares are designated Series A
Preferred Stock, none of which are issued and outstanding, and 1 share of Series C Preferred Stock is designated, issued and outstanding,
and which provides the holder thereof with 51% of the voting power of the Company’s stockholders.
(ii) Other
Rights. Except as disclosed in filings by the Company with the Securities and Exchange Commission since September 1, 2020 (the “SEC
Reports”), and except for options issued to officers, employees and consultants of the Company, there are no options or warrants
for the purchase from the Company of shares of Common Stock. The Company is not a party or subject to any agreement or understanding,
and, to the Company’s knowledge, there is no agreement or understanding between any persons and/or entities, which affects or relates
to the voting or giving of written consents with respect to any security or by a director of the Company.
(c) Authorization.
All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of the Company hereunder, and the authorization, issuance (or reservation
for issuance), sale and delivery of the Common Stock and Warrants being sold hereunder and the Common Stock issuable upon exercise of
the Warrants has been taken or will be taken prior to the Initial Closing. This Agreement and the Warrants, when executed and delivered
by the Company, shall constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with
their respective terms except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other
laws of general application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability
of specific performance, injunctive relief or other equitable remedies.
(d) Valid
Issuance of Common Stock and Warrant Shares. The shares of Common Stock that are being purchased by the Purchasers hereunder,
when issued, sold and delivered in accordance with the terms of this Agreement for the consideration expressed herein, will be duly and
validly issued, fully paid, and nonassessable, and will be free of restrictions on transfer other than restrictions on transfer under
this Agreement and under applicable state and federal securities laws or liens or encumbrances created by or imposed by a Purchaser. The
Common Stock issuable upon exercise of the Warrants purchased hereunder has been duly and validly reserved for issuance and, upon issuance
in accordance with the terms of the Warrant, will be duly and validly issued, fully paid, and nonassessable and will be free of restrictions
on transfer other than restrictions on transfer under this Agreement and under applicable state and federal securities laws or liens or
encumbrances created by or imposed by a Purchaser.
(e) Effect
of Agreement. The execution, delivery and performance by the Company of this Agreement and the Warrants, will not violate the
charter documents, bylaws or formation documents of the Company or any law to which the Company is subject, or any judgment, award or
decree or any material indenture, material agreement or other material instrument to which the Company is a party, or by which the Company
or its properties or assets are bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both)
a default under, any such indenture, agreement or other instrument, or result in the creation or imposition of any lien of any nature
whatsoever upon any of the properties or assets of the Company, except to the extent the effect thereof will not be materially adverse
to the Company’s ability to fulfill its obligations under this Agreement and the Warrants.
(f) Legal
Proceedings. There is no order or action pending, or, to the knowledge of the Company, threatened against or affecting the Company
in connection with the Company’s performance hereunder. There is no matter as to which the Company, or, to the knowledge of the
Company, any affiliate of the Company has received any notice, claim or assertion which otherwise has been threatened against or affecting
the Company in connection with its performance hereunder.
(g) Seniority
of Note. The Company represents that upon receipt of the funds from this Offering and the application thereof as contemplated
in this Agreement, the Notes shall be senior in terms of priority on liquidation to all other existing debt obligations of the Company
(the “Remaining Debt”).
4. Covenants
of the Company and the Purchasers.
(a) The
Company agrees to use its commercially reasonable efforts to file with the Commission as soon as reasonably practicable following the
final closing under this Agreement a registration statement on Form S-1 or such other form under the Securities Act then available to
the Company (the “Registration Statement”) providing for the resale of the shares of Common Stock purchased hereunder,
including any shares of Common Stock issuable upon exercise of the Warrants (collectively, the “Registrable Securities”).
The Company shall use its commercially reasonable efforts to cause such Registration Statement to be declared effective by the Commission
as soon as practicable after the initial filing thereof. Any Registration Statement shall provide for the resale from time to time, and
pursuant to any method or combination of methods legally available by the Purchasers of any and all Registrable Securities. The Company
shall use its commercially reasonable efforts to maintain the effectiveness of the Registration Statement until such time as the Common
Stock sold hereunder may be sold under Rule 144 under the Securities Act; provided, however, that failure to do so shall not constitute
a breach under this Section 4.
(b) The
Company shall pay all registration expenses in connection with the registration of the Registrable Securities pursuant to this Agreement.
Each Purchaser participating in a registration pursuant to this Section 4 shall bear such Purchaser’s proportionate share (based
on the total number of Registrable Shares sold in such registration) of all discounts and commissions payable to underwriters or brokers
and all transfer taxes and transfer fees in connection with a registration of Registrable Securities pursuant to this Agreement.
(c) It
shall be a condition precedent to the obligations of the Company to take any action pursuant to this Section 4 with respect to Registrable
Securities of any selling Purchaser that such selling Purchaser shall furnish to the Company such information as reasonably requested
by the Company to effect the registration of such Purchaser’s Registrable Securities, including information regarding such selling
Purchaser, the Registrable Securities held by it, and the intended method of disposition, as well as in connection with any sale of Registrable
Securities by the Purchasers.
(d) The Company shall use the proceeds from the
offering for general corporate purposes, including working capital.
5. Representations
and Warranties of the Purchasers. Each Purchaser hereby represents and warrants to the Company that:
(a) Authorization.
Such Purchaser has full power and authority to enter into this Agreement. This Agreement, when executed and delivered by the Purchaser,
will constitute a valid and legally binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and any other laws of general
application affecting enforcement of creditors’ rights generally, and as limited by laws relating to the availability of a specific
performance, injunctive relief, or other equitable remedies.
(b) Purchase
Entirely for Own Account. This Agreement is made with the Purchaser in reliance upon the Purchaser’s representation to the
Company, which by the Purchaser’s execution of this Agreement, the Purchaser hereby confirms, that the Securities to be acquired
by the Purchaser will be acquired for investment for the Purchaser’s own account, not as a nominee or agent, and not with a view
to the resale or distribution of any part thereof, and that the Purchaser has no present intention of selling, granting any participation
in, or otherwise distributing the same. By executing this Agreement, the Purchaser further represents that the Purchaser does not presently
have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to such person or to
any third person, with respect to any of the Securities. The Purchaser has not been formed for the specific purpose of acquiring any of
the Securities.
(c) Knowledge.
The Purchaser is aware of the Company’s business affairs and financial condition and has acquired sufficient information about the
Company to reach an informed and knowledgeable decision to acquire the Securities. The Purchaser understands that an investment in the
Company involves a high degree of risk, including the possible loss of the Purchaser’s entire investment and the risks set forth
in the SEC Reports. The Purchaser has had the opportunity to review the SEC Reports. The Purchaser is able to bear the economic risk of
an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. The Purchaser has been
afforded (a) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the
Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities
and (b) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or
expense that is necessary to make an informed investment decision with respect to the investment.
(d) Restricted
Securities. Purchaser understands that the Securities have not been registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of the Purchaser’s representations as expressed herein. The Purchaser understands that the Securities are
“restricted securities” under applicable U.S. federal and state securities laws and that, pursuant to these laws, the Purchaser
must hold the Securities indefinitely unless they are registered with the Commission and qualified by state authorities,
or an exemption from such registration and qualification requirements is available. The Purchaser acknowledges that the Company’s
obligation to register or qualify the Securities for resale is limited to the registration rights provided to Purchasers pursuant to this
Agreement. The Purchaser further acknowledges that if an exemption from registration or qualification is available, it may be conditioned
on various requirements including, but not limited to, the time and manner of sale, the holding period for the Securities, and on requirements
relating to the Company which are outside of the Purchaser’s control, and which the Company is under no obligation and may not be
able to satisfy.
(e) No
Public Market. The Purchaser understands that there is no public market now for Warrants and only a limited market exists for
the Company’s Common Stock and the Company has made no assurances that a significant public market will ever exist for the Warrants.
(f) Legends.
The Purchaser understands that the Securities, and any securities issued in respect thereof or exchange therefor, may bear one or all
of the following or substantially similar legends:
(i) “THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AND HAVE BEEN ACQUIRED FOR INVESTMENT
AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR DISTRIBUTION THEREOF. NO SUCH SALE OR DISTRIBUTION MAY BE EFFECTED WITHOUT
AN EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL IN A FORM SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.”
(ii) Any
legend required by the Blue Sky laws of any state to the extent such laws are applicable to the shares represented by the certificate
so legended.
(g) Accredited
Investor. The Purchaser (i) has such knowledge and experience in financial and business matters that Purchaser is capable of evaluating
the merits and risks of the prospective investment in the Securities, and either (ii) is an accredited investor as defined in Rule 501(a)
of Regulation D promulgated under the Securities Act and has accurately completed the accredited investor certification attached as Schedule
A, or (iii) if Purchaser is not an accredited investor, Purchaser has accurately completed the non-accredited investor acknowledgement
form attached as Schedule B.
(h) Purchaser has been provided
access to each of the Company’s annual report on Form 10-K for the year ended December 31, 2022 and any other reports filed by the
Company with the Commission since such filing of the Form 10-K.
6. Conditions
of the Purchasers’ Obligations at Closing. The obligations of each Purchaser to the Company under this Agreement are subject
to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived:
(a) Representations,
Warranties and Covenants. The representations and warranties of the Company contained in Section 3 (including those incorporated
by reference) shall be true on and as of the Closing with the same effect as though such representations and warranties had been made
on and as of the date of the Closing and the Company shall have complied with all covenants in this Agreement as of or prior to the Closing.
(b) Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful issuance and sale of the Securities pursuant to this Agreement shall be obtained and effective
as of the Closing.
7. Conditions
of the Company’s Obligations at Closing. The obligations of the Company to each Purchaser under this Agreement are subject
to the fulfillment, on or before the Closing, of each of the following conditions, unless otherwise waived (it being acknowledged that
the Company may accept or reject any subscription for Securities in its sole discretion):
(a) Representations,
Warranties and Covenants. The representations and warranties of each Purchaser contained in Section 4 shall be true on and as
of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing and the Purchaser
shall have complied with all covenants in this Agreement as of or prior to the Closing.
(b) Payment
of Purchase Price. The Purchaser shall have delivered the purchase price specified in Section 1 for the number of shares of Common
Stock and Warrants to purchase shares of Common Stock set forth for such Purchaser on the signature pages hereto..
(c) Qualifications.
All authorizations, approvals or permits, if any, of any governmental authority or regulatory body of the United States or of any state
that are required in connection with the lawful issuance and sale of the Securities pursuant to this Agreement shall be obtained and effective
as of the Closing.
8. Miscellaneous
and Other Covenants.
(a) Successors
and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors
and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
(b) Governing
Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be
governed, construed and interpreted in accordance with the laws of the State of New York without giving effect to principles of conflicts
of law. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated
by this Agreement and the Warrants shall be commenced exclusively in the state and federal courts sitting in the City of New York. If
either party shall commence an action or proceeding to enforce any provisions of this Agreement, then the prevailing party in such action,
suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such action or proceeding.
(c) Counterparts.
This Agreement may be executed in two or more counter-parts, each of which shall be deemed an original and all of which together
shall constitute one instrument.
(d) Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement.
(e) Notices.
Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service or confirmed electronic mail or facsimile, or 48 hours after being deposited in the U.S. mail
as certified or registered mail with postage prepaid, if such notice is addressed to the party to be notified at such party’s address
or facsimile number as set forth below or as subsequently modified by written notice.
(f) Finder’s
Fee. Each party represents that it neither is nor will be obligated for any finder’s fee or commission in connection with
this transaction. Each Purchaser agrees to indemnify and to hold harmless the Company from any liability for any commission or compensation
in the nature of a finder’s fee (and the costs and expenses of defending against such liability or asserted liability) for which
each Purchaser or any of its officers, employees, or representatives is responsible. The Company agrees to indemnify and hold harmless
each Purchaser from any liability for any commission or compensation in the nature of a finder’s fee (and the costs and expenses
of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives
is responsible.
(g) Amendments
and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the Company and the holders
of at least a majority of the Common Stock to be purchased hereunder. Any amendment or waiver effected in accordance with this Section
7(g) shall be binding upon each Purchaser and each transferee of the Securities, each future holder of all such Securities, and the Company.
(h) Severability.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the
provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such
provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(i) Entire
Agreement. This Agreement, the Notes, the Warrants, and the Exhibits and Schedules hereto and the other documents referred to
herein and therein constitute the entire agreement between the parties hereto pertaining to the subject matter hereof, and any and all
other written or oral agreements existing between the parties hereto are expressly canceled.
(j) Exculpation
Among Purchasers. Each Purchaser acknowledges that it is not relying upon any other Purchaser, in making its investment or decision
to invest in the Company. Each Purchaser agrees that no Purchaser nor the respective controlling persons, officers, directors, partners,
agents, or employees of any Purchaser shall be liable for any action heretofore or hereafter taken or omitted to be taken by any of them
in connection with the Securities.
(k) Expenses.
Each of the Parties shall be responsible for their respective expenses and costs incurred in connection with the negotiation, documentation
and execution of this Agreement and the other agreements, and documents contemplated herein and therein.
The parties have executed this Securities Purchase
Agreement as of the date first written above.
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BESPOKE EXTRACTS, INC.: |
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By: |
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Address: |
12001 E. 33rd St. Unit O |
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Aurora, CO 80010 |
[PURCHASER SIGNATURE PAGES TO BESPOKE EXTRACTS,
INC. 2024 SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: ______________________________________________________
Signature of Authorized Signatory of Purchaser:
_________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory:_________________________________________
Facsimile Number of Authorized Signatory: __________________________________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
Subscription Amount: $_________________
Principal Balance of Note: _________________
Number of Warrants: __________________
EIN or SS Number: ____________________
Exhibit 10.2
EXHIBIT A
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR THE APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR
SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES LAWS, OR AN EXEMPTION FROM REGISTRATION
THEREUNDER, IN EACH CASE, TO THE EXTENT APPLICABLE HERETO.
SENIOR SECURED NOTE
$____________ |
____________, 2024 |
FOR VALUE RECEIVED, BESPOKE EXTRACTS,
INC., a Nevada corporation (“Borrower”) hereby promises to pay to _______________________________ or registered
assigns (“Holder”) on the date set forth below, (i) the aggregate principal sum of _________________ DOLLARS
($____________) , (ii) accrued and unpaid interest on the unpaid principal balance hereof in the amount set forth herein and
(iii) any other amounts payable hereunder (collectively, the “Obligations”). This Senior Note (“Note”)
is issued by the Borrower pursuant to the terms of a Securities Purchase Agreement (“Securities Purchase Agreement”)
dated the date hereof entered into between Holder and Borrower. Capitalized terms used herein without further definition shall have the
meanings ascribed to such terms in the Securities Purchase Agreement.
1. Payment
of Principal. The principal amount of this Note, together with all unpaid interest accrued thereon and any other Obligations payable
hereunder, shall be due and payable in full on February 15, 2025 (the “Maturity Date”).
2. Accrual
and Payment of Interest. The unpaid principal balance due hereunder shall bear interest (“Interest”) at
an annual rate of fifteen percent (15%) (the “Interest Rate”) and shall be calculated on the basis of a year
of twelve 30-day months, and the actual number of days elapsed for any partial month. The Principal shall bear interest from and including
the first day of an Interest Period to and including the last day of such Interest Period at a rate equal to the Interest Rate. “Interest
Period” means, initially, the period commencing the day after the Closing Date and ending on and including the final day
of the calendar month of the Closing Date, and thereafter, each monthly period, or a partial monthly period during which the Principal
is repaid in full. Interest shall be due and payable on the fifth Business Day following the end of an Interest Period. All principal
and Interest shall be due and payable on the Maturity Date.
3. Optional
and Mandatory Prepayment. At any time prior to the Maturity Date the Borrower shall have the right to make full or partial payments
of the unpaid principal balance and the Interest payable under this Note (“Prepayment”); provided
that in the event any principal balance is prepaid prior to the six-month anniversary of the Closing Date, the total amount of Interest
that shall be paid with respect to the portion of the principal amount so prepaid (including any previous payments of Interest) shall
be equal to six months of Interest.
4. Default.
(a) “Event
of Default” shall mean the occurrence of one or more of any of the following events:
(i) failure
to pay in full and when due any installment of principal or Interest on the Note, which failure is not cured within thirty (30) days following
the Company’s actual knowledge of such failure, or other material default of the Borrower with respect to any other representation
and warranty or covenant under the Securities Purchase Agreement which material default is not cured within thirty (30) days following
the Company’s actual knowledge of such failure;
(ii) the
liquidation, termination or dissolution of Borrower, or its ceasing to carry on actively its present business or the appointment of a
receiver for its property; or
(iii) the
institution by or against the Borrower of any proceedings under the Bankruptcy Code 11 USC §101 et seq. or any other law in
which the Borrower is alleged to be insolvent or unable to pay its debts as they mature, which proceeding is not dismissed within ninety
(90) days after institution, or the making by the Borrower of an assignment for the benefit of creditors or the granting by the Borrower
of a trust mortgage for the benefit of creditors.
(b) Acceleration.
If an Event of Default shall occur, then the Super Majority, by written notice to the Borrower, may (i) declare the Obligations due hereunder
to be immediately due and payable, whereupon the sum of (x) the outstanding principal amount of this Note and (y) the Interest and other
amounts outstanding hereunder shall become and shall be forthwith due and payable, without diligence, presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived, and (ii) exercise any and all of its other rights under applicable
law and/or hereunder. Any payment pursuant to this Section 4 shall be applied first to the Interest owed under this Note, second,
to any other Obligations (other than principal) owed hereunder and lastly to the principal balance of this Note.
Upon the occurrence of an Event
of Default, without the approval of the Super Majority, the Holder shall have no right to undertake any of the types of actions described
in clauses (i) or (ii) hereof or any other enforcement or collection action with respect to this Note. “Super Majority”
shall mean the registered owners of more than 66.66% of the aggregate outstanding principal amount of (i) the Notes and (ii) up to $660,000
in additional senior notes with terms substantially identical to the Notes that the Company plans to issue and sell..
(c) Default
Rate. If an Event of Default shall occur, then the Interest Rate shall be adjusted to 18.0%, as of such date, and shall be due and
payable on the Maturity Date, or date of final payment of this Note.
5. Seniority..
This Note represents a senior debt obligation of the Borrower and will be senior in right of repayment to all subordinated debt obligations
of the Borrower.
6. Costs
and Expenses. Each of Borrower and Holder will pay its own expenses in connection with the transactions contemplated under the Securities
Purchase Agreement and the issuance of this Note. Borrower will pay or reimburse Holder for its reasonable costs and expenses incurred
or paid by the Holder in collecting or attempting to collect or enforcing or attempting to enforce payment of any Obligation.
7. Representations
and Warranties of Borrower. Borrower represents and warrants to Holder as follows as of the date hereof: (a) Borrower has the
power and authority to execute, deliver and perform all obligations in accordance herewith, (b) the execution, delivery and performance
by Borrower of this Note is within Borrower's legal powers, and do not contravene any law or any contractual restriction binding on or
affecting Borrower; (c) no authorization or approval or other action by, and no notice to or filing with any governmental authority
or regulatory body is required for the due execution, delivery and performance by Borrower of this Note; (d) this Note constitutes
the legal, valid and binding obligation of Borrower party thereto, enforceable against Borrower in accordance with its terms, except to
the extent enforceability is limited by bankruptcy, insolvency, fraudulent conveyance, moratorium and other laws for the protection of
creditors generally and by general equitable principles; and (e) there is no pending or, to Borrower's knowledge, threatened action or
proceeding affecting Borrower before any governmental agency or arbitrator with respect to the transactions contemplated by this Note
or which may materially adversely affect the property, assets or condition (financial or otherwise) of Borrower.
8. Amendment.
Except for the obligations to repay the outstanding principal on the Notes and to pay accrued Interest, the terms of the Notes (and this
Note), including the Maturity Date and the Interest Rate, may be modified with the written consent of the Simple Majority and any such
amendment shall be binding on all of the Holders.
9. Persons
Deemed Owners. The person in whose name a Note is registered on the books and records of the Borrower shall be deemed to be the absolute
owner thereof for all purposes, and payment of any principal or Interest on such Note shall be made only to the registered owner thereof
or such owner’s legal representative. All payments made to the registered owner or such owner’s legal representative shall
be valid and effectual to discharge the liability of the Borrower upon this Note to the extent of the sum or sums so paid.
10. Transfer.
The Borrower will keep the registration and transfer books for this Note. The Notes may be transferred only on the books of the Borrower.
This Note may not be transferred unless the Holder delivers to the Borrower a written opinion of legal counsel or otherwise satisfies
the Borrower with respect to the compliance of such transfer with applicable securities laws and the transferee enters into a written
agreement in form and substance acceptable to the Borrower pursuant to which the transferee agrees to be bound by all of the provisions
of the Note. Upon surrender or transfer of this Note at the principal office of the Borrower, duly endorsed for transfer or accompanied
by a proper assignment duly executed by the registered owner or such owner’s attorney duly authorized in writing, and accompanied
by the agreement and other documentation described in the preceding sentence, the Borrower will issue and deliver to the transferee a
new, fully registered Note in like principal amount.
11. Miscellaneous.
(a) Incorporation
of Terms of Securities Purchase Agreement. The terms of the Securities Purchase Agreement are incorporated into the terms of this
Note to the same extent as if set forth herein. Such terms include but are not limited to the notice provisions, confidentiality, survival
of representations and warranties, successors and assigns, governing law, waiver of right to jury trial, and other provisions set forth
in the Securities Purchase Agreement. In the event of an inconsistency between the terms of this Note and the terms of the Securities
Purchase Agreement, the terms of this Note shall govern.
(g) Severability.
Whenever possible, each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Note is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this
Note shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been
contained herein.
(h) Entire
Agreement. Except as otherwise expressly set forth herein, this Note and the Securities Purchase Agreement embody the complete agreement
and understanding between the parties hereto with respect to the subject matter hereof and supersede and preempt any prior understandings,
agreements or representations by or between the parties, written or oral, that may have related to the subject matter hereof in any way.
(i) Counterparts.
This Note may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute
one and the same agreement.
(j) Governing
Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES. EACH PARTY AGREES THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING IN ANY WAY TO THIS NOTE SHALL BE BROUGHT
IN A U.S. FEDERAL OR STATE COURT OF COMPETENT JURISDICTION SITTING IN NEW YORK, NEW YORK. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO THE JURISDICTION OF SUCH COURT AND HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY DEFENSE OF AN INCONVENIENT FORUM OR A
LACK OF PERSONAL JURISDICTION TO THE MAINTENANCE OF ANY ACTION OR PROCEEDING AND ANY RIGHT OF JURISDICTION OR VENUE ON ACCOUNT OF THE
PLACE OF RESIDENCE OR DOMICILE OF ANY PARTY HERETO. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST,
A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(k) No
Third Party Beneficiaries. This Note is intended for the benefit of the parties hereto and their respective permitted successors and
assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.
(l) Descriptive
Headings. The descriptive headings of this Note are inserted for convenience only and do not constitute a part of this Note.
[Signature Page Follows]
[Signature Page to Senior Note]
IN WITNESS WHEREOF,
this Note has been executed as of the date first written above.
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BESPOKE EXTRACTS, INC. |
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By: |
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Name: |
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Title: |
CEO |
Exhibit 10.3
COMMON STOCK PURCHASE WARRANT
BESPOKE EXTRACTS, INC.
Warrant # 2024-x: |
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Issue Date: February 16 2024 |
Warrant Shares _+_________ |
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Initial Exercise Date: February 16 2024 |
THIS COMMON STOCK PURCHASE WARRANT (the “Warrant”)
certifies that, for value received, or its 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 the date hereof (the “Initial Exercise Date”)
and on or prior to 5:00 p.m. (New York City time) on February 15, 2026 (the “Termination Date”)
but not thereafter, to subscribe for and purchase from Bespoke Extracts, Inc., a Nevada corporation (the “Company”),
up to ___________ shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s
common stock (the “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 Securities Purchase Agreement
(the “Purchase Agreement”), dated February 15, 2024 among the Company and the purchasers signatory thereto.
Section 2. Exercise.
a) 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 Initial Exercise 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 in the form annexed hereto (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(d)(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(c) 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. 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.
B Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $0.11, subject to adjustment hereunder (the “Exercise
Price”).
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 Securities 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).
Notwithstanding anything herein to the contrary, on the Termination
Date, this Warrant shall be automatically exercised via cashless exercise.
f) 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 or resale of the Warrant
Shares by the Holder or (B) this Warrant is being exercised via cashless exercise pursuant to Section 2(c) above, 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, 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.
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.
viii. 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, nonexercised 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 nonconverted 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(e) 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(e), 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%/9.99%] of the number of shares of the Common Stock outstanding
immediately after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), 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(e) 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.
Section 3. Certain
Adjustments. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 3.
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, (iii) combines (including by way of reverse
stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) 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. 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) (v) Record
Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to
receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe
for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the
issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making
of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).
c) Number
of Warrant Shares. Simultaneously with any adjustment to the Exercise Price pursuant to Section 3(a) and/or 3(b) above,
the number of Warrant Shares that may be purchased upon exercise of this Warrant shall be increased or decreased proportionately, so that
after such adjustment the aggregate Exercise Price payable hereunder for the adjusted number of Warrant Shares shall be the same as the
aggregate Exercise Price in effect immediately prior to such adjustment (without regard to any limitations on exercise contained herein).
d) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a), 3(b) and 3(c) 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).
e) 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).
f) 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.
Section 4. Transfer of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws, 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(d)(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(d)(i) and 2(d)(iv), in no event will the Company be required to net cash settle
a Warrant exercise.
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 Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
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 Purchase 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) Nonwaiver
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 Purchase 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 Purchase 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 and the Holder.
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.
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BESPOKE EXTRACTS, INC. |
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By: |
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Name: |
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Title: |
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NOTICE OF EXERCISE
TO: BESPOKE
EXTRACTS, INC.
(1) |
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The undersigned hereby elects to purchase Warrant
Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of
the exercise price in full, together with all applicable transfer taxes, if any. |
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(2) |
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Payment shall take the form of (check applicable box): |
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☐ in lawful money of the United States;
or |
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☐ if permitted the cancellation of such number
of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), 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(c). |
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(3) |
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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:
[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 purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name: |
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(Please Print) |
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Address: |
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(Please Print) |
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Phone Number: |
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Email Address: |
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Dated: |
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Holder’s Signature: |
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Holder’s Address: |
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