PROSPECTUS
SUPPLEMENT NO. 1
(To
Prospectus Dated October 25, 2024)
Filed
Pursuant to Rule 424(b)(3)
Registration
Statement No. 333-282337
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
Issuance
of up to 32,755,097 Ordinary Shares
This
prospectus supplement (this “Prospectus Supplement”) is being filed to update and supplement our prospectus contained in
our Registration Statement on Form F-1, dated October 25, 2024 (the “Prospectus”) relating to the resale, from time to time
of up to an aggregate of 32,755,097 ordinary shares of the Company, $0.165 par value per share (“Ordinary Shares”), by the
selling stockholders named elsewhere in this prospectus (“Selling Stockholders”). The Ordinary Shares included in this prospectus
consist of (1) 1,590,000 Ordinary Shares; (2) 3,760,000 Ordinary Shares underlying pre-funded warrants; (3) up to 21,836,730 Ordinary
Shares underlying Series A Common Warrants; and (4) up to 5,568,367 Ordinary Shares underlying Series B Common Warrants.
Specifically,
this Prospectus Supplement is being filed to update and supplement the information included in the Prospectus with certain information
set forth below. Any statement contained in the Prospectus shall be deemed to be modified or superseded to the extent that information
in this Prospectus Supplement modifies or supersedes such statement. Any statement that is modified or superseded shall not be deemed
to constitute a part of the Prospectus except as modified or superseded by this Prospectus Supplement.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the Prospectus.
This
Prospectus Supplement is not complete without, and may not be utilized except in connection with, the Prospectus, including any supplements
and amendments thereto.
We
may further amend or supplement the Prospectus and this Prospectus Supplement from time to time by filing amendments or supplements as
required. You should read the entire Prospectus, this Prospectus Supplement and any amendments or supplements carefully before you make
your investment decision.
Our
Ordinary Shares are listed on The Nasdaq Capital Market under the symbol “SMX” and our public warrants are listed on The
Nasdaq Capital Market under the symbol “SMXWW”. On December 27, 2024, the closing price of our Ordinary Shares was $0.3536.
Investing
in our Ordinary Shares involves significant risks. You should read the section entitled “Risk Factors” beginning on page
21 of the Prospectus for a discussion of certain risk factors that you should consider before investing in our Ordinary Shares.
Neither
the Securities and Exchange Commission nor any state securities commission or other regulatory body has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this Prospectus Supplement is December 30, 2024
Announcement
of Potential Business Combination
On
December 6, 2024, the Company announced that it had entered into a non-binding Heads of Agreement with Ybyra Capital (B3: YBRA4), an
emerging holding company focused in commodities and real estate development in South America. The merger, as contemplated in the Heads
of Agreement and approved in principle by Ybyra Capital’s shareholders on 5 December 2024, sets forth a strategic framework expected
to position SMX to leverage synergies and expand into untapped high-growth markets.
The
key highlights of the Heads of Agreement include:
| |
● |
Ybyra
will contribute certain fertilizer holdings, real estate assets and other assets in Brazil to a newly created Irish private company
wholly owned by SMX. An independent appraiser will establish the valuation of these assets. |
| |
|
|
| |
● |
Ybyra
shareholders will receive shares in SMX in exchange for the contributed assets. |
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|
|
| |
● |
SMX
and Ybyra will each call a special shareholder meeting to approve the transactions, after finalizing definitive and binding agreements. |
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|
|
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● |
The
parties are targeting the first half of 2025 to close the merger. |
The
merger is expected to allow the harnessing of SMX’s expertise known as “material efficiency” and “equilibrium
effect” in marking, tracking, and certifying the authenticity and provenance of products such as coffee, tea, metals, palm oil,
and natural rubber. These capabilities will integrate with Ybyra’s logistics and commodity infrastructure—including fertilizer
facilities—expected to enable rapid scaling of SMX’s traceability solutions across South America and Asia.
SMX’s
scalable technology, after deployment across Ybyra’s logistics network, is expected to be then expanded into operations across
South America and Asia. The combined entity further intends to set new standards in sustainable and ethical certification for commodities
traded between South America and the United States, targeting evolving market demands and global sustainability goals in those regions.
SMX
and Ybyra expect that the combined company will capitalize on the accelerating trade between South America and Asia, driven by rising
demand for natural resources and the need for solutions that provide real-time information related to product sourcing, transparency,
and regard to sustainable supply chain trade. SMX also expects that by combining its innovative blockchain technology with Ybyra’s
strategic assets and logistical expertise, the emerging entity will provide a scalable infrastructure that facilitates efficient, accountable,
and transparent global trade. This platform is expected to enhance shareholder value by monetizing demand inherent to a multi-trillion-dollar
global trade market.
The
non-binding Heads of Agreement provides a roadmap, including the need for further due diligence, regulatory and shareholder approvals,
and drafting of definitive merger documents. The parties cannot at this time give any assurance that definitive documents will be executed
or delivered, that both companies will satisfy all expected closing conditions, including stockholder approvals, or that the transaction
will ever be consummated.
NFC
and RFID Chips
SMX
has successfully embedded its markers directly into the coating of readily available off the shelf NFC and RFID chips, enabling precise
authentication and verification throughout their lifecycles, with the expectation that the coatings would mitigate risks associated with
counterfeiting, unauthorized tampering, and supply chain vulnerabilities.
SMX’s
proprietary coating technology has been shown in testing to enhance shelf chips durability and performance, as well as their resilience
against common environmental stressors, hereby potentially enabling the extension of their operational lifespan and reliability. Additionally,
the SMX coating has the capability to store data, adding a potential extra layer of functionality, resilience to heat (e.g. up to 150
Degrees Celsius), and additional protection against the elements.
SMX
believes that its technology’s ability to provide authentication will extend into the wearable and flexible electronics markets,
and its technology has been shown in testing to ensure that NFC and RFID chips integrated into apparel remain functional and secure under
demanding conditions.
Extraordinary
General Meeting of Shareholders
Please
see attached Report on Form 6-K, which was submitted to the United States Securities and Exchange Commission (the “SEC”)
on December 10, 2024.
Nasdaq
Listing Delinquency Notice
Please
see attached Report on Form 6-K, which was submitted to the SEC on December 13, 2024.
Loan
Agreement
Please
see attached Report on Form 6-K, which was submitted to the SEC on December 30, 2024.
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES
EXCHANGE ACT OF 1934
For
the month of December 2024
Commission
File Number: 001-41639
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
(Exact
Name of Registrant as Specified in Charter)
Mespil
Business Centre, Mespil House
Sussex
Road, Dublin 4, Ireland
Tel:
+353-1-920-1000
(Address
of Principal Executive Offices) (Zip Code)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F ☒ Form
40-F ☐
The
Extraordinary General Meeting of Shareholders (the “General Meeting”) of SMX (Security Matters) Public Limited Company (the
“Company”), originally scheduled for December 3, 2024, was adjourned to and was held on December 10, 2024. At the General
Meeting, the Company’s shareholders voted on the following proposal and cast their votes as described below. The proposal is described
in more detail in the Company’s Notice and Proxy Statement for Extraordinary General Meeting of Shareholders attached as Exhibit
99.1 to the Company’s Report on Form 6-K filed with the U.S. Securities and Exchange Commission on November 8, 2024 (the “Proxy
Statement”).
Proposal
1: To consolidate the Company’s ordinary shares (with a nominal value of US$0.165 per share) in the authorized but unissued
and in the authorized and issued share capital of the Company, at a ratio to be determined by a majority vote of the Chief Executive
Officer of the Company, the Chairman of the Board of the Company and the acting CFO of the Company; provided in no event shall the split
ratio be a ratio that would result in the Company’s ordinary shares be less than US$2.50 or in excess of US$10.00 (when based on
the closing price per ordinary share as of the record date of the Extraordinary General Meeting), into one ordinary share with a corresponding
adjustment to the nominal value per share.
| For | |
Against | |
Abstain |
| 1,498,830 | |
400,307 | |
1,550 |
There
were 1,900,687 ordinary shares voted at the General Meeting. Accordingly, as the Company has received a majority of the votes cast at
the General Meeting, in accordance with Ireland law, Proposal 1 passed.
The
Company has not yet determined if and when it will effect the consolidation, and if it does, the actual consolidation ratio, when its
ordinary shares would begin trading on a consolidation-adjusted basis, or the exact number of shares outstanding taking into account
the consolidation. If the Company determines to effect the consolidation, it will then determine the consolidation ratio and will announce
the status and the ratio in a Report on Form 6-K. In addition, even if the Company determines to effect the consolidation, the consolidation
will not be effective and the Company’s ordinary shares will not begin trading on a consolidation-adjusted basis, until the Company’s
ordinary shares have been assigned a new ISIN number and CUSIP number.
As
previously disclosed in the Proxy Statement, the Company reserves the right to abandon the consolidation without further action by its
shareholders at any time before the effectiveness, even though the consolidation was authorized by the Company’s shareholders at
the General Meeting. By having voted in favor of the consolidation, the Company’s shareholders expressly also authorizing the Company
to determine not to proceed with, and abandon, the consolidation if it should so decide.
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.
Date:
December 10, 2024
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SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
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|
| |
By: |
/s/
Haggai Alon |
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Name: |
Haggai
Alon |
| |
Title: |
Chief
Executive Officer |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES
EXCHANGE ACT OF 1934
For
the month of December 2024
Commission
File Number: 001-41639
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
(Exact
Name of Registrant as Specified in Charter)
Mespil
Business Centre, Mespil House
Sussex
Road, Dublin 4, Ireland
Tel:
+353-1-920-1000
(Address
of Principal Executive Offices) (Zip Code)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F ☒ Form
40-F ☐
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.
Date:
December 13, 2024
| |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
| |
|
| |
By: |
/s/
Haggai Alon |
| |
Name: |
Haggai
Alon |
| |
Title: |
Chief
Executive Officer |
Exhibit
99.1
PRESS
RELEASE
|
 |
SMX
Announces Receipt of Nasdaq Listing Delinquency Notice
NEW
YORK, December 13, 2024 – SMX (Security Matters) PLC (NASDAQ:SMX; SMXWW) announces that on December 11, 2024, it received a delinquency
notification letter from the Listing Qualifications Staff of the Nasdaq Stock Market LLC due to the Company’s non-compliance with
Nasdaq Listing Rule 5550(a)(2), as the bid price of the Company’s ordinary shares on the Nasdaq Capital Market was below $1.00
for 30 consecutive business days, from October 8, 2024 to December 9, 2024.
Normally,
a company would be afforded a 180-calendar day period to demonstrate compliance with the Bid Price Rule. However, pursuant to Nasdaq
Listing Rule 5810(c)(3)(A)(iv), the Company is not eligible for any compliance period specified in Rule 5810(c)(3)(A) due to the fact
that the Company effected one or more reverse stock splits over the prior two-year period with a cumulative ratio of 250 shares or more
to one. Accordingly, unless the Company requests a hearing before a Hearings Panel, trading of the Company’s ordinary shares and
public warrants will be suspended.
The
Company intends to request a hearing before a Hearings Panel at which it will request continued listing on The Nasdaq Capital Market.
The Company’s hearing request will stay the suspension of trading and delisting of the Company’s ordinary shares and public
warrants pending the conclusion of the hearing process. Consequently, the Company’s ordinary shares and public warrants will remain
listed on The Nasdaq Capital Market at least until the Hearings Panel renders a decision following the hearing. There can be no assurance
that the Hearings Panel will determine to continue the Company’s listing on The Nasdaq Capital Market or that the Company will
timely evidence compliance with the terms of any extension that may be granted by Nasdaq following the hearing.
For
further information contact:
| SMX
GENERAL ENQUIRIES |
Follow
us through our social channel @secmattersltd
|
 |
| |
|
|
| E:
info@securitymattersltd.com |
@smx.tech |
 |
About
SMX:
SMX
specializes in advanced marking, tracking, and verification solutions, ensuring product authenticity and supply chain transparency across
industries. As global businesses face new and complex challenges relating to carbon neutrality and meeting new governmental and regional
regulations and standards, SMX is able to offer players along the value chain access to its marking, tracking, measuring and digital
platform technology to transition more successfully to a low-carbon economy
Forward-Looking
Statements
The
information in this press release includes “forward-looking statements” within the meaning of the Private Securities Litigation
Reform Act of 1995. Forward-looking statements include, but are not limited to, statements regarding expectations, hopes, beliefs, intentions
or strategies regarding the future. In addition, any statements that refer to projections, forecasts or other characterizations of future
events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,”
“contemplate,” “continue,” “could,” “estimate,” “expect,” “forecast,”
“intends,” “may,” “will,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “should,” “would” and similar expressions may identify forward-looking
statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this
press release may include, for example: statements regarding the Company’s plans to regain compliance with Nasdaq Rules for continued
listing; the successful completion of the planned merger transaction with Ybyra on terms beneficial to SMX or at all; successful launch
and implementation of SMX’s joint projects with manufacturers and other supply chain participants of steel, rubber and other materials;
changes in SMX’s strategy, future operations, financial position, estimated revenues and losses, projected costs, prospects and
plans; SMX’s ability to develop and launch new products and services, including its planned Plastic Cycle Token; SMX’s ability
to successfully and efficiently integrate future expansion plans and opportunities; SMX’s ability to grow its business in a cost-effective
manner; SMX’s product development timeline and estimated research and development costs; the implementation, market acceptance
and success of SMX’s business model; developments and projections relating to SMX’s competitors and industry; and SMX’s
approach and goals with respect to technology. These forward-looking statements are based on information available as of the date of
this press release, and current expectations, forecasts and assumptions, and involve a number of judgments, risks and uncertainties.
Accordingly, forward-looking statements should not be relied upon as representing views as of any subsequent date, and no obligation
is undertaken to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result
of new information, future events or otherwise, except as may be required under applicable securities laws. As a result of a number of
known and unknown risks and uncertainties, actual results or performance may be materially different from those expressed or implied
by these forward-looking statements. Some factors that could cause actual results to differ include: the ability to maintain the listing
of the Company’s shares on Nasdaq; changes in applicable laws or regulations; any lingering effects of the COVID-19 pandemic on
SMX’s business; the ability to implement business plans, forecasts, and other expectations, and identify and realize additional
opportunities; the risk of downturns and the possibility of rapid change in the highly competitive industry in which SMX operates; the
risk that SMX and its current and future collaborators are unable to successfully develop and commercialize SMX’s products or services,
or experience significant delays in doing so; the risk that the Company may never achieve or sustain profitability; the risk that the
Company will need to raise additional capital to execute its business plan, which may not be available on acceptable terms or at all;
the risk that the Company experiences difficulties in managing its growth and expanding operations; the risk that third-party suppliers
and manufacturers are not able to fully and timely meet their obligations; the risk that SMX is unable to secure or protect its intellectual
property; the possibility that SMX may be adversely affected by other economic, business, and/or competitive factors; and other risks
and uncertainties described in SMX’s filings from time to time with the Securities and Exchange Commission.
 | 1 |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16 UNDER THE
SECURITIES
EXCHANGE ACT OF 1934
For
the month of December 2024
Commission
File Number: 001-41639
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY
(Exact
Name of Registrant as Specified in Charter)
Mespil
Business Centre, Mespil House
Sussex
Road, Dublin 4, Ireland
Tel:
+353-1-920-1000
(Address
of Principal Executive Offices) (Zip Code)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F. Form 20-F ☒ Form
40-F ☐
On
December 28, 2024, SMX (Security Matters) Public Limited Company (the “Company”) entered into a Loan Agreement, dated as
of December 27, 2024 (the “Loan Agreement”), with Abri Advisors Ltd. (the “Lender”), pursuant to which the Company
borrowed $1,000,000 from the Lender.
Pursuant
to the Loan Agreement, the Company agrees to pay to the Lender at the June 30, 2025 maturity date, $1,400,000, which represents an original
issue discount of 28.57%, plus interest on such amount at an absolute rate of 15%.
During
the period when any amounts under the Loan Agreement are outstanding and remain due and payable, the Company shall not issue any other
form of debt instrument ranking senior or pari passu to or with the obligations under the Loan Agreement, whether in terms of payment
or collateral, without the express prior written consent of the Lender.
Additionally,
during the period when any amounts under the Loan Agreement are outstanding and remain due and payable, if the Company undertakes, completes,
agrees to complete, commits to complete, or otherwise sells any equity, or other securities fungible in any way into equity, warrants,
options, preferred shares, convertible preferred shares, or any other form of equity-related instrument of the Company (a “Financing”),
then the Company shall repay twenty percent (25.0%) of the then Loan Balance within three business days from the closing date of the
Financing (a “Financing Repayment”). A Financing Repayment shall not reduce or otherwise diminish the amount due under the
Loan Agreement at the maturity of the loan, irrespective of the date of the Financing Repayment.
The
Loan Agreement contains customary Events of Default for transactions similar to the transactions contemplated by the Loan Agreement.
In the event of an Event of Default, subject to a three day cure period, the loan balance due plus any Refinancing Repayment that may
be due, then multiplied by 150%, shall become immediately due and payable by the Company to the Lender (the “Default Payment Amount”).
The Default Payment Amount shall compound interest at a monthly rate of 5.0% from the date it becomes due and payable up and until the
date of payment.
The
Loan Agreement contains representations and warranties made by each of the Company and the Lender.
The
foregoing is a brief description of the Loan Agreement, and is qualified in its entirety by reference to the full text of such document,
which is incorporated herein as Exhibit 10.1.
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.
Date:
December 30, 2024
| |
SMX
(SECURITY MATTERS) PUBLIC LIMITED COMPANY |
| |
|
| |
By: |
/s/
Haggai Alon |
| |
Name: |
Haggai
Alon |
| |
Title: |
Chief
Executive Officer |
Exhibit
10.1
LOAN
AGREEMENT
THIS
PROMISSORY LOAN (the “Loan”) is made on 27 December 2024, by and among Abri Advisors Ltd., a
Bermuda Corporation with registration number 51179, with its registered address at Clarendon House, 2 Church Street, Hamilton HM 11 Bermuda,
(the “LENDER”) and SMX (Security Matters) PLC, an Irish public limited company with registration number
722009, with its registered address at Mespil Business Center, Mespil House, Sussex Road, Dublin 4, MH, Ireland, (the “BORROWER”).
The BORROWER and LENDER shall individually be known as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS
the LENDER wishes to lend funds to the BORROWER, and the BORROWER wishes to borrow funds from the LENDER.
WHEREAS
this Loan is a senior and binding obligation of the BORROWER and the BOROWER shall not rely on any defense, whether legal or equitable,
to invalidate or otherwise excuse compliance with the terms of this Loan, including but not limited to defenses of usury, incapacity,
illegality, or lack of consideration.
ARTICLE
I: GENERAL LOAN TERMS
1.1 LOAN
AMOUNT, the BORROWER irrevocably promises to pay the LENDER the sum of US$1’400’000 (One Million Four Hundred
Thousand and 00/100 United States Dollars) (the “Loan Face Amount”) together with interest thereon at an absolute
rate of fifteen percent (15.0%), irrespective if the Loan Balance Due, as defined below, is repaid at Maturity, or earlier (“Interest”)
and the Interest together with the Loan Face Amount being referred to herein as the “Loan Balance Due”.
1.2 Original
Issue Discount. The Loan is being issued at a discount of twenty-eight and fifty-seven one hundredths of a percent (28.57%)
to the Loan Face Amount. For clarity’s sake, the Loan Face Amount is equal to $1’400’000, and the amount to be funded
by the LENDER is equal to $1’000’000.
1.3 Maturity.
The Loan Balance Due is fully due and payable by BORROWER on 30 June 2025 (the “Maturity”), or immediately
upon written demand by the LENDER due an Event of Default as defined herein.
1.4 Method
of Payment. The LENDER shall fund the Loan by wire transfer of United States Dollars to the credit of the BORROWER’s
bank account details as indicated in ATTACHMENT A hereto. The BORROWER shall make all payments called for under this Loan by wire
transfer of United States Dollars to the credit of the LENDER bank account details indicated in ATTACHMENT B hereto.
1.5 Subsequent
Debt Related Financing. During the period when any amounts under the Loan are outstanding and remain due and payable, the
BORROWER shall not issue any other form of debt instrument ranking senior or pari passu to or with the obligations under this Loan, whether
in terms of payment or collateral, without the express prior written consent of the LENDER.
1.6 Subsequent
Equity Related Financing. During the period when any amounts under the Loan are outstanding and remain due and payable, if
the BORROWER undertakes, completes, agrees to complete, commits to complete, or otherwise sells any equity, or other securities fungible
in any way into equity, warrants, options, preferred shares, convertible preferred shares, or any other form of equity-related instrument
of the BORROWER (a “Financing”), then the BORROWER shall repay twenty percent (25.0%) of the then Loan Balance
within three (3) business days from the closing date of the Financing (a “Financing Repayment”). A Financing
Repayment shall not reduce or otherwise diminish the Loan Balance Due at Maturity, irrespective of the date of the Financing Repayment.
ARTICLE
II: EVENTS OF DEFAULT
2.1 The
occurrence of any of the following events shall constitute an Event of Default by the BORROWER under the terms of this Loan (an “Event
of Default”):
| i. | Non-Payment.
The
BORROWER fails to pay any amount that is or becomes due under the terms of this Loan when
the payment becomes due and payable, whether at Maturity, by acceleration, or otherwise. |
| | | |
| ii. | Breach.
The
BORROWER fails to comply with or perform any term, obligation, covenant, or condition contained
in the Loan or any related agreement. |
| iii. | Insolvency.
The BORROWER becomes insolvent, makes an assignment for the benefit of creditors, or admits in writing its inability to pay its
debts as they become due; provided, however, that a “going concern” qualification shall not be deemed any such
admission. |
| | | |
| iv. | Bankruptcy.
The BORROWER files a petition in bankruptcy, reorganization, or similar proceeding, or such a petition is filed against the BORROWER
and is not dismissed within thirty (30) days. |
| | | |
| v. | Judgments. Any
judgment or order for the payment of money in excess of US$50’000 is rendered against
the BORROWER and remains unsatisfied or unstayed for a period of 30 days. |
| | | |
| vi. | Misrepresentation. Any
representation or warranty made by the BORROWER in this Loan or any related agreement is
found to have been incorrect, false, or misleading in any material respect when made. |
| | | |
| vii. | Cross-Default. The
BORROWER defaults under any other agreement or instrument involving borrowed money, which
results in the acceleration of the maturity of such indebtedness or permits the holder thereof
to cause such indebtedness to become due prior to its stated maturity. |
| | | |
| viii. | Change
of Control. A
change in the ownership or control of the BORROWER occurs without the prior written consent
of the LENDER. |
| | | |
| ix. | Material
Adverse Effect. In
the sole discretion of the LENDER, any event occurs that has a material adverse effect on
the BORROWER’s ability to perform its obligations under the Loan. |
| | | |
| x. | Refinancing
Payment. The
BORROWER fails to make a Financing Repayment when due. |
| | | |
| xi. | NASDAQ
DELISTING. The BORROWER has its common stock delisted from the NASDAQ market, or any
other principal market upon which its common shares are traded. |
2.2 Upon
the occurrence of an Event of Default as defined above, the BORROWER shall have Three (3) days after the date of the occurrence of the
Event of Default to cure said Event of Default (the “Cure Period”), and if the BORROWER is unable to cure,
or fails to cure the Event of Default within the Cure Period, then the i) Loan Balance Due plus ii) any Refinancing Repayment
that may be due, with the sum of (i) and (ii) then multiplied by 150%, shall become immediately due and payable by the BORROWER to the
LENDER (the “Default Payment Amount”). The Default Payment Amount shall compound interest at a monthly rate
of five (5.0%) from the date it becomes due and payable up and until the date on which it is received by the LENDER in its bank account
as detailed herein.
ARTILCE
III: REPRESENTATIONS AND WARRANTIES OF THE LENDER
The
LENDER represents and warrants the following to the BORROWER, as of the effective date of the Loan:
3.1 Authority.
The LENDER has the requisite power and authority to enter into and perform its obligations herein and to consummate the transaction
contemplated hereby. The execution and delivery of the Loan and the consummation by the LENDER of the transaction contemplated hereby
have been duly authorized by all necessary action and no further consent or authorization of the LENDER is required.
3.2 Not
an Affiliate. The Lender is not an officer, director, or “affiliate” (as that term is defined in Rule 405
of the Securities Act) of the BORROWER.
3.3 Organisation
and Standing. The LENDER is an entity duly formed, validly existing, and in good standing under the laws of Bermuda
with full right or similar power and authority to enter into and to consummate the transaction contemplated by the Loan.
3.4 Absence
of Conflicts. The consummation of the transaction contemplated hereby does not and will not (a) result in a violation of the
LENDER’s certificate or articles of formation or organization or other organizational or charter documents, (b) conflict with,
or constitute a material default (or an event that with notice or lapse of time or both would become a material default) under, result
in the creation of any Lien upon any of the properties or assets of the LENDER, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture, instrument, or (c) result in a violation of any federal, state or local law,
rule, regulation, order, judgment, or decree applicable to the LENDER or by which any property or asset of the LENDER is bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually
or in the aggregate, have a Material Adverse Effect).
ARTICLE
IV REPRESENTATIONS AND WARRANTIES OF THE BORROWER
The
BORROWER represents and warrants the following to the LENDER, as of the effective date of the Loan:
4.1 Organisation
of the BORROWER. The BORROWER is a company duly organized, validly existing and in good standing under the laws of
Ireland, with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
The BORROWER is not in violation or default of any of the provisions of its organizational or charter documents. The BORROWER is duly
qualified to conduct business and is in good standing as a foreign company in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case
may be, could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding has been instituted in any
such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit, or curtail such power and authority or qualification.
4.2 Authority. The BORROWER has the requisite BORROWER power and authority to enter into and perform its obligations under this Loan. The
execution and delivery of this Loan by the BORROWER, and the consummation by BORROWER of the borrowing transaction contemplated hereby,
has been duly authorized by all necessary action and no further consent or authorization of the BORROWER or its board of directors is
required. This Loan has been duly executed and delivered by the BORROWER and constitutes a valid and binding obligation of the BORROWER
enforceable against the BORROWER in accordance with its terms, subject to applicable bankruptcy, insolvency, or similar laws relating
to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of general application.
4.3 SEC
Documents; Disclosure. The BORROWER has filed all reports, schedules, forms, statements, and other documents required to be
filed by the BORROWER under the Securities Act and the Exchange Act, including pursuant to Section 13(a) thereof, for the one (1) year
preceding the date hereof (or such shorter period as the BORROWER was required by law or regulation to file such material) (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the
“SEC Documents”) on a timely basis or has received a valid extension of such time of filing and has filed any
such SEC Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable, and other federal laws, rules, and regulations
applicable to such SEC Documents, and none of the SEC Documents when filed contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The financial statements of the BORROWER included in the SEC Documents comply as to form
and substance in all material respects with applicable accounting requirements and the published rules and regulations of the SEC or
other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance with IFRS applied
on a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the Loans
thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be condensed or summary
statements) and fairly present in all material respects the financial position of the BORROWER as of the dates thereof and the results
of operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal, immaterial, year-end
audit adjustments). The BORROWER confirms that neither it nor any other Person acting on its behalf has provided the LENDER or its agents
or counsel with any information that it believes constitutes or might constitute material, non-public information. The BORROWER understands
and confirms that the LENDER will rely on the foregoing representation in effecting the transaction hereunder.
4.4 No
Conflicts. The execution, delivery, and performance of the Loan by the BORROWER and the consummation by the BORROWER of the
transaction contemplated hereby, including, without limitation, the obligation to pay the Loan Balance Due upon Maturity, do not and
will not (a) result in a violation of the BORROWER’s articles of association or other organizational or charter documents, (b)
conflict with, or constitute a material default (or an event that with notice or lapse of time or both would become a material default)
under, result in the creation of any Lien upon any of the properties or assets of the BORROWER, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, instrument or any “lock-up” or similar provision of
any underwriting or similar agreement to which the BORROWER is a party, or (c) result in a violation of any federal, state or local law,
rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the BORROWER
or by which any property or asset of the BORROWER is bound or affected (except for such conflicts, defaults, terminations, amendments,
accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect). The business
of the BORROWER is not being conducted in violation of any law, ordinance or regulation of any governmental entity, except for possible
violations that either singly or in the aggregate do not and will not have a Material Adverse Effect. The BORROWER is not required under
federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration
with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under the Loan; provided
that, for purposes of the representation made in this sentence, the BORROWER is assuming and relying upon the accuracy of the relevant
representations and agreements of LENDER herein.
4.5 Litigation
and Other Proceedings. There are no material actions, suits, investigations, SEC inquiries, FINRA inquiries, NASDAQ
inquiries, or similar proceedings (however any governmental agency may name them) pending or, to the actual knowledge of the BORROWER,
threatened against or affecting the BORROWER or its properties, nor has the BORROWER received any written or, to the knowledge of the
BORROWER, oral notice of any such action, suit, proceeding, SEC inquiry, FINRA inquiry, NASDAQ inquiry or investigation, which would
have a Material Adverse Effect. No judgment, order, writ, injunction or decree or award against the BORROWER has been issued by or, to
the actual knowledge of the BORROWER, requested of any court, arbitrator or governmental agency which would have a Material Adverse Effect.
There has not been, and to the actual knowledge of the BORROWER, there is no pending investigation by the SEC involving the BORROWER
or any current officer or director of the BORROWER.
4.6 Placement
Agent; Other Covered Persons. The BORROWER has not engaged any Person to act as a placement agent, underwriter, broker, dealer,
or finder in connection with issuance of the Loan, and the obligations hereunder, to the LENDER. The BORROWER is not aware of any Person
that has been or will be paid (directly or indirectly) remuneration for solicitation of the LENDER in connection with the Loan.
ARTICLE
V: MISCELLANEOUS
5.1 GOVERNING
LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the
principles of conflicts of law.
5.2 ASSIGNMENT. The Loan shall be binding upon the BORROWER and inure to sole and exclusive benefit of the LENDER and its respective successors.
Neither the Loan nor any obligations of the BORROWER hereunder may be assigned to any other person or entity without the express prior
consent of the LENDER.
5.3 TERMINATION. This Loan, and the obligations hereunder, shall automatically terminate upon the payment of the Loan Balance Due, and any and all
other payments that may be due hereunder, including a Financing Repayment.
5.4 ENTIRE
AGREEMENT. This Loan contains the entire understanding of the BORROWER and the LENDER with respect to the matters covered herein,
and supersede any and all prior agreements and understandings, oral or written, with respect to such matters.
5.5 FEES
AND EXPENSES. Each Party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such Party incidental to the negotiation, preparation, execution, delivery and performance of the Loan, except
for any and all fees and costs incurred by the LENDER for the enforcement of any part of this Loan against the BORROWER (“Enforcement
Costs”). Enforcement Costs shall be added to the Loan Balance due, and shall accrue interest pursuant to the terms herein,
and shall be immediately due and payable by the BORROWER upon written demand by the LENDER, and shall remain fully due and payable until
fully paid or reimbursed by the BORROWER to the LENDER, whether at Maturity or at any other time.
5.6 COUNTERPARTS
AND EXECUTION. The Loan may be executed in one or more counterparts, each of which may be executed by less than all of the Parties,
all of which together will constitute one instrument, will be deemed to be an original, and will be enforceable against the Parties.
The Loan may be delivered to the other Party hereto by email of a copy of the Loan bearing the signature of the Party so delivering the
Loan. The Parties agree that this Agreement shall be considered signed when the signature of a Party is delivered by .PDF, AdobeSign,
DocuSign or other generally accepted electronic signature. Such .PDF, AdobeSign, DocuSign, or other generally accepted electronic signature
shall be treated in all respects as having the same effect as an original signature.
5.7 SEVERABILITY.
In the event that any provision of this Loan becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable
or void, this Loan shall continue in full force and effect without said provision; provided that such severability shall be ineffective
if it materially changes the economic benefit of this Loan to the LENDER.
5.8 FURTHER
ASSURANCES. Each Party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as the other Party may reasonably request in order to
carry out the intent and accomplish the purposes of this Loan and the consummation of the transaction contemplated hereby.
5.9 NOT
TO BE CONSTRUED AGAINST DRAFTER. The Parties acknowledge that they have had an adequate opportunity to review this Loan and to submit
the same to legal counsel for review and comment. The Parties agree that the rule of construction that a contract be construed against
the drafter, if any, shall not be applied in the interpretation and construction of this Loan.
5.10 TITLE
AND SUBTITLES. The titles and subtitles used in this Loan are used for the convenience of reference and are not to be considered
in construing or interpreting this Loan.
5.11 AMENDMENTS;
WAIVERS. No provision of this Loan may be amended other than by a written instrument signed by both Parties hereto and no provision
of this Loan may be waived other than in a written instrument signed by the Party against whom enforcement of such waiver is sought.
No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or
privilege.
5.12 PUBLICITY. The BORROWER and the LENDER shall consult with each other prior to issuing any press releases or otherwise making public statements
with respect to the transaction contemplated hereby, and no Party shall issue any such press release or otherwise make any such public
statement, without the prior written consent of the other Party.
5.13 NOTICES
The
addresses for communications shall be:
| If to the BORROWER: |
| |
|
| ATTN: |
Alon
Haggai |
| |
|
| Address: |
Mespil
Business Centre, Mespil House, Sussex Road, Dublin 4, Ireland, D04 T4A6 |
| |
|
| Telephone: |
+1.332.288.8042 |
| |
|
| E-mail: |
info@securitymattersltd.com
or haggai@securitymattersltd.com |
| |
|
| If to the LENDER: |
| |
|
| ATTN: |
Jeffrey
Tirman |
| |
|
| Address: |
Clarendon
House, 2 Church Street, Hamilton HM 11, BERMUDA |
| |
|
| Telephone: |
+41.78.670.4400 |
| |
|
| E-mail: |
jtirman@abriadv.com |
Signature
Pages to Follow:
IN
WITNESS WHEREOF, the Parties have executed this Loan and accept the binding obligations hereunder.
| BORROWER: |
|
| |
|
|
| Signature: |
/s/
Haggai Alon |
|
| |
|
|
| Email:
|
haggai@securitymattersltd.com |
|
| |
|
|
| Title:
|
CEO
SMX |
|
| |
|
|
| Company:
|
SMX |
|
| |
|
|
| Dated:
|
28
Dec-2024 |
|
| |
|
|
| LENDER(S): |
|
| |
|
|
| Signature:
|
/s/
Jeffrey Tirman |
|
| |
|
|
| Email:
|
jtirman@abriadv.com |
|
| |
|
|
| Title:
|
CEO |
|
| |
|
|
| Company:
|
Abri
Advisors |
|
| |
|
|
| Dated:
|
28
Dec-2024 |
|
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