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Item 2.03
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement
of a Registrant
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On December 28, 2020, Brain Scientific
Inc. (the “Company”) entered into a Securities Purchase Agreement (the “Purchase Agreement”) dated as of
December 28, 2020 (the “Issuance Date”) and issued and sold to Auctus Fund, LLC (the “Investor”), a 12%
Senior Secured Promissory Note (the “Note”) in the principal amount of $300,000. Also pursuant to the Purchase Agreement,
in connection with the issuance of the Note, the Company issued two common stock purchase warrants (separately, “Warrant
A” and “Warrant B”, and together, the “Warrants”) to the Investor, allowing the Investor to purchase
an aggregate of 500,000 shares of the Company’s common stock (the “Common Stock”), with Warrant A being a commitment
fee of 250,000 shares of Common Stock, and Warrant B being fully earned upon issuance as an additional commitment fee of 250,000
shares of Common Stock, provided that Warrant B is returnable to the Company upon the repayment of the Note, as an additional incentive
for the repayment of the Note.
Also pursuant to the Purchase Agreement,
in connection with the issuance of the Note, the Company entered into a Security Agreement, dated as of December 28, 2020 (the
“Security Agreement”), pursuant to which payment of the full amount of the Note is secured by Collateral (as defined
in the Security Agreement). Pursuant to the Note and the Security Agreement, the Company shall not, directly or indirectly, create,
permit or suffer to exist, and shall defend the Collateral against and take such other action as is necessary to remove, any Lien
(as defined in the Security Agreement) on or in the Collateral, or in any portion thereof, except as permitted pursuant to the
Security Agreement.
The net amount received by the Company
on December 28, 2020 was approximately $265,000 after payment of certain fees to the Investor or on behalf of the Investor.
The Company intends to use the net proceeds
from the sale of the Note for the Company’s working capital and general corporate purposes.
Commencing as of the Issuance Date, and
until the sooner of the six month anniversary of the Issuance Date or payment of the Note in full, the Company shall not, directly
or indirectly, without the Investor’s prior written consent: (a) change the nature of its business; (b) sell, divest, acquire,
change the structure of any material assets other than in the ordinary course of business; or (c) solicit any offers for, respond
to any unsolicited offers for, or conduct any negotiations with any other person or entity in respect of any variable rate debt
transactions above $1,000,000, whether a transaction similar to the one contemplated hereby or any other investment, other than
variable rate debt transactions of which the Company is already a party as of the Issuance Date that are being renegotiated or
restructured. In addition, so long as the Company shall have any obligations under the Note, the Company shall not, without the
Investor’s written consent, (i) pay, declare or set apart for such payment, any dividend or other distribution (whether in
cash, property or other securities) on shares of capital stock other than dividends on shares of Common Stock solely in the form
of additional shares of Common Stock; (ii) directly or indirectly or through any subsidiary make any other payment or distribution
in respect of its capital stock except for distributions pursuant to any shareholders’ rights plan which is approved by a
majority of the Company’s disinterested directors; (iii) redeem, repurchase or otherwise acquire (whether for cash or in
exchange for property or other securities or otherwise) in any one transaction or series of related transactions any shares of
capital stock of the Company or any warrants, rights or options to purchase or acquire any such shares; (iv) subject to certain
exceptions set forth in the Note, create, incur, assume guarantee, endorse, contingently agree to purchase or otherwise become
liable upon the obligation of any person, firm, partnership, joint venture or corporation, or suffer to exist any liability for
borrowed money; (v) subject to certain exceptions set forth in the Note, lend money, give credit or make advances to any person,
firm, joint venture or corporation including, without limitation, officers, directors, employees, subsidiaries and affiliates of
the Borrower; or (vi) enter into any transaction or arrangement structured in accordance with, based upon, or related or pursuant
to, in whole or in part, either Section 3(a)(9) of the Securities Act of 1933 (a “3(a)(9) Transaction”), as amended
(the “Securities Act”) or Section 3(a)(l0) of the Securities Act (a “3(a)(l0) Transaction”). In the event
that the Company does enter into, or makes any issuance of Common Stock related to a 3(a)(9) Transaction or a 3(a)(l0) Transaction
while the Note is outstanding, a liquidated damages charge of 25% of the outstanding principal balance of the Note, but not less
than $15,000, will be assessed and will become immediately due and payable to the Investor at its election in the form of cash
payment or addition to the balance of the Note
The Note bears interest commencing on the
Issuance Date at a fixed rate of 12% per annum on any unpaid principal balance, and will be payable, along with the principal amount,
on December 28, 2021 (the “Maturity Date”).
A lump-sum interest payment for one year
is due on the Issuance Date and added to the principal balance and payable on the Maturity Date or upon acceleration or by prepayment
or otherwise, notwithstanding the number of days which the principal is outstanding. Principal payments shall be made in 6 installments
each in the amount of US$56,000.00 commencing 180 days following the applicable Issue Date (as defined in the Note) and continuing
thereafter each 30 days for 5 months.
Provided that an Event of Default (as defined
in the Note) has not occurred, the Company may prepay in whole or in part the amounts outstanding under the Note without prepayment
penalty.
The Note contains customary Events of Default
which entitle the Investor, among other things, to accelerate the due date of the unpaid principal amount of, and all accrued and
unpaid interest on, the Note. Upon an Event of Default, interest shall accrue at a default interest rate of 24% per annum or, if
such rate is usurious or not permitted by current law, then at the highest rate of interest permitted by law.
In the event the Company breaches any of
the covenants set forth in Section 4 of the Purchase Agreement, and in addition to any other remedies available to the Investor
pursuant to the Purchase Agreement, it will be considered an Event of Default under the Note in addition to the other Events of
Default set forth in Section 3 of the Note. Upon an Event of Default, all amounts payable under the Note shall immediately become
due and payable and the Company shall pay to the Investor the “Default Sum” (as defined in the Note) in cash.
The Warrants each have an exercise price
of $1.20, subject to customary adjustments (including anti-dilution adjustments), and may be exercised at any time until the three
year anniversary of the Warrants; provided, however, in the event the Company repays the Note in its entirety on or prior to the
Maturity Date, Warrant B shall automatically expire and may only be exercised in the event it does not so automatically expire.
The Warrants include a cashless exercise provision as set forth therein.
The exercise of the Warrants are subject
to a beneficial ownership limitation of 4.99% of the number of shares of Common Stock outstanding immediately after giving effect
to such exercise.
The foregoing is a brief description of
the purchase of the Note and the Warrants, and is qualified in its entirety by reference to the full text of the Purchase Agreement,
the Note, Warrant A, Warrant B, and the Security Agreement, copies of which are included as Exhibits 10.1, 10.2, 10.3, 10.4, and
10.5, respectively, to this Current Report on Form 8-K, each of which are incorporated herein by reference.