SEC Form SC 13D filed by InterPrivate II Acquisition Corp.

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

SCHEDULE 13D

(Rule 13d-101)

UNDER THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No. )

(Name of Issuer)

(Title of Class of Securities)

(CUSIP Number)

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

May 4, 2023

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. x

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

(1)       Includes (i) 266,156 shares of common stock (“Common Stock”) of Getaround, Inc. (the “Issuer”), (ii) 19,001,494 shares of Common Stock issuable upon conversion of Convertible Notes, and (iii) 7,000,000 shares of Common Stock issuable upon the exercise of Warrants, in each case, directly held by Mudrick Distressed Opportunity Fund Global, L.P., Mudrick Distressed Opportunity Drawdown Fund II, L.P., Mudrick Distressed Opportunity Drawdown Fund II SC, L.P., Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P., Mudrick Distressed Opportunity SIF Master Fund, L.P., Mudrick Stressed Credit Master Fund, L.P., Mudrick Opportunity Co-Investment Fund, L.P., and certain accounts managed by Mudrick Capital Management, L.P., in the aggregate.

(2)       Based on 118,087,468 shares of Common Stock outstanding, which includes (i) 92,085,974 shares of Common Stock outstanding as of December 14, 2022, as reported in the Issuer’s Current Report on Form 8-K filed with the Securities and Exchange Commission (“SEC”) on December 14, 2022 (the “Outstanding Shares”), (ii) 19,001,494 shares of Common Stock issuable upon the conversion of Convertible Notes in the aggregate beneficially owned by the Reporting Persons, and (iii) 7,000,000 shares of Common Stock issuable upon the exercise of Warrants beneficially owned by the Reporting Persons.

(1)       Includes (i) 266,156 shares of Common Stock, (ii) 19,001,494 shares of Common Stock issuable upon conversion of Convertible Notes, and (ii) 7,000,000 shares of Common Stock issuable upon the exercise of Warrants, in each case, directly held by Mudrick Distressed Opportunity Fund Global, L.P., Mudrick Distressed Opportunity Drawdown Fund II, L.P., Mudrick Distressed Opportunity Drawdown Fund II SC, L.P., Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P., Mudrick Distressed Opportunity SIF Master Fund, L.P., Mudrick Stressed Credit Master Fund, L.P., Mudrick Opportunity Co-Investment Fund, L.P., and certain accounts managed by Mudrick Capital Management, L.P., in the aggregate.

(2)       Based on 118,087,468 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 19,001,494 shares of Common Stock issuable upon the conversion of Convertible Notes in the aggregate beneficially owned by the Reporting Persons, and (iii) 7,000,000 shares of Common Stock issuable upon the exercise of Warrants beneficially owned by the Reporting Persons.

(1)       Includes (i) 266,156 shares of Common Stock, (ii) 19,001,494 shares of Common Stock issuable upon conversion of Convertible Notes, and (ii) 7,000,000 shares of Common Stock issuable upon the exercise of Warrants, in each case, directly held by Mudrick Distressed Opportunity Fund Global, L.P., Mudrick Distressed Opportunity Drawdown Fund II, L.P., Mudrick Distressed Opportunity Drawdown Fund II SC, L.P., Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P., Mudrick Distressed Opportunity SIF Master Fund, L.P., Mudrick Stressed Credit Master Fund, L.P., Mudrick Opportunity Co-Investment Fund, L.P., and certain accounts managed by Mudrick Capital Management, L.P., in the aggregate.

(2)       Based on 118,087,468 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 19,001,494 shares of Common Stock issuable upon the conversion of Convertible Notes in the aggregate beneficially owned by the Reporting Persons, and (iii) 7,000,000 shares of Common Stock issuable upon the exercise of Warrants beneficially owned by the Reporting Persons.

(1)       Includes (i) 66,362 shares of Common Stock, (ii) 4,737,562 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 1,745,280 shares of Common Stock issuable upon the exercise of Warrants.

(2)       Based on 98,568,816 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 4,737,562 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 1,745,280 shares of Common Stock issuable upon the exercise of Warrants.

(1)       Reflects beneficial ownership as the general partner of Mudrick Distressed Opportunity Fund Global, L.P.

(2)       Based on 98,568,816 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 4,737,562 shares of Common Stock issuable upon the conversion of Convertible Notes directly held by Mudrick Distressed Opportunity Fund Global, L.P., and (iii) 1,745,280 shares of Common Stock issuable upon the exercise of Warrants directly held by Mudrick Distressed Opportunity Fund Global, L.P.

(1)       Reflects (i) 44,842 shares of Common Stock, (ii) 3,201,372 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 1,179,360 shares of Common Stock issuable upon the exercise of Warrants.

(2)       Based on 96,466,706 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 3,201,372 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 1,179,360 shares of Common Stock issuable upon the exercise of Warrants.

(1)       Reflects (i) 4,386 shares of Common Stock, (ii) 313,144 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 115,360 shares of Common Stock issuable upon the exercise of Warrants.

(2)       Based on 92,514,478 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 313,144 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 115,360 shares of Common Stock issuable upon the exercise of Warrants.

(1)       Reflects beneficial ownership as the general partner of Mudrick Distressed Opportunity Drawdown Fund II, L.P. and Mudrick Distressed Opportunity Drawdown Fund II SC, L.P.

(2)       Based on 96,895,210 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 3,514,516 shares of Common Stock issuable upon the conversion of Convertible Notes directly held by Mudrick Distressed Opportunity Drawdown Fund II, L.P. and Mudrick Distressed Opportunity Drawdown Fund II SC, L.P., and (iii) 1,294,720 shares of Common Stock issuable upon the exercise of Warrants directly held by Mudrick Distressed Opportunity Drawdown Fund II, L.P. and Mudrick Distressed Opportunity Drawdown Fund II SC, L.P.

(1)       Reflects (i) 11,259 shares of Common Stock, (ii) 803,817 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 296,120 shares of Common Stock issuable upon the exercise of Warrants.

(2)       Based on 93,185,911 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 803,817 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 296,120 shares of Common Stock issuable upon the exercise of Warrants.

(1)       Reflects beneficial ownership as the general partner of Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P.

(2)       Based on 93,185,911 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 803,817 shares of Common Stock issuable upon the conversion of Convertible Notes directly held by Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P., and (iii) 296,120 shares of Common Stock issuable upon the exercise of Warrants directly held by Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P.

(1)       Reflects (i) 9,280 shares of Common Stock, (ii) 662,555 shares of Common Stock issuable upon the conversion of Convertible Notes, and (ii) 244,080 shares of Common Stock issuable upon the exercise of Warrants.

(2)       Based on 92,992,609 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 662,555 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 244,080 shares of Common Stock issuable upon the exercise of Warrants.

(1)       Reflects beneficial ownership as the general partner of Mudrick Distressed Opportunity SIF Master Fund, L.P.

(2)       Based on 92,992,609 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 662,555 shares of Common Stock issuable upon the conversion of Convertible Notes directly held by Mudrick Distressed Opportunity SIF Master Fund, L.P., and (iii) 244,080 shares of Common Stock issuable upon the exercise of Warrants directly held by Mudrick Distressed Opportunity SIF Master Fund, L.P.

(1)       Reflects (i) 24,077 shares of Common Stock, (ii) 1,718,929 shares of Common Stock issuable upon the conversion of Convertible Notes, and (ii) 633,240 shares of Common Stock issuable upon the exercise of Warrants.

(2)       Based on 94,438,143 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 1,718,929 shares of Common Stock issuable upon the conversion of Convertible Notes, and (ii) 633,240 shares of Common Stock issuable upon the exercise of Warrants.

(1)       Reflects beneficial ownership as the general partner of Mudrick Stressed Credit Master Fund, L.P.

(2)       Based on 94,438,143 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 1,718,929 shares of Common Stock issuable upon the conversion of Convertible Notes directly held by Mudrick Stressed Credit Master Fund, L.P., and (ii) 633,240 shares of Common Stock issuable upon the exercise of Warrants directly held by Mudrick Stressed Credit Master Fund, L.P.

(1)       Reflects (i) 7,604 shares of Common Stock, (ii) 542,900 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 200,000 shares of Common Stock issuable upon the exercise of Warrants.

(2)       Based on 92,828,874 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 542,900 shares of Common Stock issuable upon the conversion of Convertible Notes, and (iii) 200,000 shares of Common Stock issuable upon the exercise of Warrants.

(1)       Reflects beneficial ownership as the general partner of Mudrick Opportunity Co-Investment Fund, L.P.

(2)       Based on 92,828,874 shares of Common Stock outstanding, which includes (i) the Outstanding Shares, (ii) 542,900 shares of Common Stock issuable upon the conversion of Convertible Notes directly held by Mudrick Opportunity Co-Investment Fund, L.P., and (iii) 200,000 shares of Common Stock issuable upon the exercise of Warrants directly held by Mudrick Opportunity Co-Investment Fund, L.P.

Explanatory Note: The Reporting Persons are filing this statement on Schedule 13D as a result of their beneficial ownership of Issuer Securities (as defined herein) exceeding 20% of the Issuer’s outstanding Common Stock as of May 4, 2023, following the issuance of the Warrants as described in Item 6 of this Schedule 13D. The Reporting Persons previously reported their beneficial ownership of Issuer Securities on a Schedule 13G, filed on December 19, 2022.

Item 1. Security and Issuer.

This statement on Schedule 13D (the “Schedule 13D”) relates to the common stock, par value $0.0001 per share (“Common Stock”) of Getaround, Inc., a Delaware corporation (the “Issuer”). The address of the principal executive offices of the Issuer are located at 55 Green Street, San Francisco, CA 94111.

Item 2. Identity and Background.

(a) This Schedule 13D is being jointly filed by Mudrick Capital Management, L.P. (“MCM”), Mudrick Capital Management, LLC (“MCM GP”), Jason Mudrick, Mudrick Distressed Opportunity Fund Global, L.P. (“Global LP”), Mudrick GP, LLC (“Mudrick GP”), Mudrick Distressed Opportunity Drawdown Fund II, L.P. (“Drawdown II”), Mudrick Distressed Opportunity Drawdown Fund II SC, L.P. (“Drawdown II SC”), Mudrick Distressed Opportunity Drawdown Fund II GP, LLC (“Drawdown II GP”), Mudrick Distressed Opportunity 2020 Dislocation Fund, L.P. (“DISL”), Mudrick Distressed Opportunity 2020 Dislocation Fund GP, LLC (“DISL GP”), Mudrick Distressed Opportunity SIF Master Fund, L.P. (“SIF”), Mudrick Distressed Opportunity SIF GP, LLC (“SIF GP”), Mudrick Stressed Credit Master Fund, L.P. (“MSC”), Mudrick Stressed Credit Fund GP, LLC (“MSC GP”), Mudrick Opportunity Co-Investment Fund, LP (“Co-Invest”), and Mudrick Opportunity Co-Investment Fund GP, LLC (“Co-Invest GP”). Each of the foregoing is referred to as a “Reporting Person” and collectively as the “Reporting Persons.”

Mudrick GP is the general partner of Global LP and may be deemed to beneficially own the number of securities of the Issuer directly held by Global LP. Drawdown II GP is the general partner of Drawdown II and Drawdown II SC and may be deemed to beneficially own the securities of the Issuer directly held by Drawdown II and Drawdown II SC. DISL GP is the general partner of DISL and may be deemed to beneficially own the number of securities of the Issuer held by DISL. SIF GP is the general partner of SIF and may be deemed to beneficially own the securities of the Issuer directly held by SIF. MSC GP is the general partner of MSC and may be deemed to beneficially own the securities of the Issuer directly held by MSC. Co-Invest GP is the general partner of Co-Invest and may be deemed to beneficially own the securities of the Issuer directly held by Co-Invest. MCM is the investment manager to Drawdown II, Global LP, Drawdown II SC, DISL, SIF, MSC, Co-Invest and certain accounts managed by MCM. Mr. Mudrick is the sole member of Mudrick GP, Drawdown II GP, MCM GP, DISL GP, SIF GP, MSC GP and Co-Invest GP. By virtue of these relationships, each of MCM, MCM GP and Mr. Mudrick may be deemed to beneficially own the securities held directly by Global LP, Drawdown II, Drawdown II SC, DISL, SIF, MSC, Co-Invest and certain accounts managed by MCM. The filing of this Schedule 13D shall not be construed as an admission that the Reporting Persons are, for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the beneficial owners of any of the securities reported herein. Each of the Reporting Persons disclaims beneficial ownership of the securities covered by this Schedule 13D for any purposes other than for purposes of Section 13(d) of the Exchange Act. Pursuant to Rule 13d-1(k)(1) under the Exchange Act, a joint filing agreement among the Reporting Persons is attached as Exhibit 1 to this Schedule 13D and incorporated herein by reference.

(b) The principal business office of the Reporting Persons is 527 Madison Avenue, 6th Floor, New York, NY 10022.

(c) The principal business of the Reporting Persons is investing in securities. The principal business of MCM is acting as the investment manager to the Reporting Persons. The principal business of MCM GP is acting as the general partner of MCM. The principal business of Mudrick GP is acting as the general partner of Global LP. The principal business of Drawdown II GP is acting as the general partner of Drawdown II and Drawdown II SC. The principal business of DISL GP is acting as the general partner of DISL. The principal business of SIF GP is acting as the general partner of SIF. The principal business of MSC GP is acting as the general partner of MSC. The principal business of Co-Invest GP is acting as the general partner of Co-Invest. The principal occupation of Mr. Mudrick is serving as the sole member of each of MCM GP, Mudrick GP, Drawdown II GP, DISL GP, SIF GP, MSC GP, and Co-Invest GP.

(d) No Reporting Person has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

(e) No Reporting Person has, during the last five years, been party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. 

(f) The responses set forth in row 6 of the cover pages of this Schedule 13D are incorporated by reference in this Item 2(f).

Item 3. Source and Amount of Funds or Other Consideration.

The information provided in Item 6 of this Schedule 13D is incorporated by reference herein.

Item 4. Purpose of Transaction.

The information provided in Item 6 of this Schedule 13D is incorporated by reference herein.

The securities reported as beneficially owned herein were acquired pursuant to that certain Convertible Note Subscription Agreement, dated May 11, 2022 (as amended, the “Convertible Notes Subscription Agreement”), by and among InterPrivate II Acquisition Corp. and MCM on behalf of certain funds, investors, entities or accounts that are managed, sponsored or advised by MCM or its affiliates (the “Convertible Notes Subscriber”) in connection with the consummation by the Issuer of a business combination on December 8, 2022 (such date, the “Closing Date”), as further described in Item 6 of this Schedule 13D.

The Reporting Persons acquired shares of Common Stock or instruments convertible into or exercisable for shares of Common Stock, including the Equitable Adjustment Shares, Convertible Notes and Warrants, as each is defined below (collectively, “Issuer Securities”) for investment purposes. The Reporting Persons intend to review their investment in the Issuer on a continuing basis and consider such other factors relevant to the Reporting Persons, which could include the price and availability of Issuer Securities, the Issuer’s business and the Issuer’s prospects, applicable legal restrictions, prevailing market conditions, other investment opportunities, tax considerations, liquidity requirements of such Reporting Person and/or other investment considerations. Without limiting the generality of the preceding sentence, each of the Reporting Persons (in each case, subject to any applicable restrictions under law) may at any time or from time to time (i) sell, transfer, distribute or otherwise dispose of all or a portion of its Issuer Securities in public or private transactions, including in registered offerings, (ii) purchase, receive in a distribution or other transfer, or otherwise acquire Issuer Securities in public or private transactions, (iii) convert or redeem all or a portion of the Convertible Notes for Common Stock; (iv) exercise all or a portion of the Warrants for shares of Common Stock, (v) enter into derivatives or hedging transactions relating to Issuer Securities, and/or (vi) enter into agreements with a broker intended to comply with the requirements of Rule 10b5-1(c)(1)(i) under the Act, on such terms and at such time as the Reporting Persons may deem advisable. Subject to the agreements described herein, the Reporting Persons, at any time and from time to time, may review, reconsider and change their position and/or change their purpose and/or develop such plans and may seek to influence management or the board of directors of the Issuer (the “Board”) with respect to the business and affairs of the Issuer and may from time to time consider pursuing or proposing such matters with advisors, the Issuer or other persons.

Item 5. Interest in Securities of the Company.

(a)-(b) The responses set forth in rows 7 through 13 of the cover pages to this Schedule 13D are incorporated by reference into this Item 5. Such responses are provided as of May 15, 2023.

By virtue of the relationships described herein, the Reporting Persons may be deemed to constitute a “group” within the meaning of Rule 13d-5 under the Exchange Act. The filing of this Schedule 13D shall not be construed as an admission that the Reporting Persons beneficially own those securities held by another member of such group. In addition, each Reporting Person expressly disclaims beneficial ownership of any securities reported herein except to the extent such Reporting Person actually exercises voting or dispositive power with respect to such securities.

(c) Except as set forth herein, the Reporting Persons have not effected any transactions in securities of the Issuer during the past 60 days.

(d) Under certain circumstances, partners, members or shareholders of the Reporting Persons, as the case may be, could have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, securities owned by such Reporting Person.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

The information set forth in Item 2 of this Schedule 13D is incorporated by reference into this Item 6.

Convertible Notes

On the Closing Date, the Convertible Notes Subscriber purchased an aggregate of $175.0 million principal amount of senior secured convertible notes (the “Convertible Notes”). The terms of the Convertible Notes are set forth in the Indenture, dated as of December 8, 2022 (the “Convertible Notes Indenture”), by and among the Issuer, the subsidiary guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee and collateral agent, and the form of global note attached thereto. The Issuer also paid MCM $5,250,000 as a backstop fee on the Closing Date.

The Convertible Notes accrue interest payable in cash or in-kind (the “Convertible Notes Interest”), in the discretion of the Issuer. The Convertible Notes Interest is payable semi-annually in arrears on December 15 and June 15 of each year, beginning on June 15, 2023, at a rate of 8.00% per annum (if paid in cash) or 9.50% per annum (if paid in-kind). Upon the occurrence, and during the continuation, of an event of default, an additional 2.00% will be added to the stated interest rate. The Convertible Notes will mature on December 8, 2027 (the “Maturity Date”), unless earlier converted, redeemed or repurchased.

The initial conversion rate of the Convertible Notes was 86.96 shares of Common Stock per $1,000 principal amount of Convertible Notes, which was approximately $11.50 per share. Effective as of April 21, 2023, the conversion price was adjusted to $9.21 per share, which was the minimum purchase price permitted following a downward adjustment based on the average daily volume-weighted average trading price (“VWAP”) of Common Stock for the 90 trading days after the Closing Date (the “90 Trading Day VWAP”) in accordance with the Convertible Notes Indenture. The conversion price is subject to further adjustments as provided in the Convertible Notes Indenture, including adjustments in connection with certain issuances or deemed issuances of Common Stock at a price less than the then-effective conversion price, at any time prior to the close of business on the second scheduled trading day immediately before the Maturity Date.

The Convertible Notes are convertible at the option of the noteholders at any time until the close of business on the second scheduled trading day immediately before the Maturity Date. Conversions of the Convertible Notes will be settled in shares of Common Stock. The Convertible Notes are redeemable at any time by the Issuer, in whole but not in part, for cash, at par plus accrued and unpaid interest to, but excluding, the redemption date, plus certain make-whole premiums as specified in the Convertible Notes Indenture. Upon the occurrence of a fundamental change (as defined in the Convertible Notes Indenture), subject to certain conditions and limited exceptions, holders may require the Issuer to repurchase for cash all or any portion of the Convertible Notes in principal amounts of $1,000 or an integral multiple thereof, at a fundamental change repurchase price equal to the principal amount of the Convertible Notes to be repurchased plus certain make-whole premiums, plus accrued and unpaid interest to, but excluding, the repurchase date.

Equitable Adjustment Shares

On the Closing Date, the Convertible Notes Subscriber received 266,156 shares of Common Stock (the “Equitable Adjustment Shares”) from the Issuer pursuant to an amendment to the Convertible Notes Subscription Agreement agreed by InterPrivate II Acquisition Corp. and the Convertible Notes Subscriber, in satisfaction of an equitable adjustment provision in favor of the Convertible Notes Subscriber under the Convertible Notes Subscription Agreement.

Warrants

Pursuant to the Convertible Notes Subscription Agreement, within 100 trading days following the Closing Date the Convertible Notes Subscriber was entitled to receive from the Issuer: 2,800,000 warrants (“Warrants”) to purchase an equal number of shares of Common Stock at an exercise price of $11.50 per share (in substantially the same form as the Issuer's publicly-traded warrants) subject to an automatic adjustment in the number of Warrants (and underlying shares) based on the volume weighted average trading price of the Issuer's publicly-traded warrants during the 90 trading days following the Closing Date; or in the Issuer's its discretion, $3,500,000 in cash. On May 4, 2023, the Issuer issued an aggregate of 7,000,000 Warrants (reflecting the maximum adjustment under the Convertible Notes Subscription Agreement) as follows: 1,745,280 to Global LP; 1,179,360 to Drawdown II; 115,360 to Drawdown II SC; 296,120 to DISL; 244,080 to SIF; 633,240 to MSC; 200,000 to Co-Invest; and an aggregate of 366,480 to certain accounts managed by MCM. The Warrants were issued on the terms set forth in the Issuer's Warrant Agreement with Continental Stock Transfer & Trust Company, as warrant agent (the “Warrant Agreement”). The Warrants are subject to certain anti-dilution provisions provided for in the Warrant Agreement.

Board Observer

Pursuant to the Convertible Notes Subscription Agreement, the Convertible Notes Subscriber is entitled to appoint one observer to the Board for so long as it continues to directly or indirectly hold at least 50.1% of its initial holdings of the Convertible Notes (on an as-converted basis).

Registration Rights

The Convertible Notes Subscriber has certain registration rights pursuant to the Convertible Notes Subscription Agreement with respect to the Equitable Adjustment Shares and the Common Stock to be issued upon conversion of the Convertible Notes or upon exercise of the Warrants, if any. These registration rights require the Issuer to prepare and file with the SEC a registration statement registering the resale of such shares.

The foregoing descriptions of the Convertible Notes Subscription Agreement, Warrant Agreement and the transactions contemplated thereby are qualified in their entirety by the full text of the Convertible Notes Subscription Agreement and amendment, copies of which are attached to this Schedule 13D as Exhibits 2, 3 and 4, respectively, and incorporated by reference herein.

Item 7. Material to be Filed as Exhibits.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: May 15, 2023