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RSJ Private Equity Investment Fund with variable registered capital, a.s. – ‘SC 13D’ on 9/15/16 re: MYnd Analytics, Inc. – ‘EX-11’

On:  Thursday, 9/15/16, at 4:21pm ET   ·   Accession #:  1615774-16-7199   ·   File #:  5-79934

Previous ‘SC 13D’:  None   ·   Next:  ‘SC 13D/A’ on 9/23/16   ·   Latest:  ‘SC 13D/A’ on 11/3/16

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

 9/15/16  RSJ Private Equity Inv Fd wit… as SC 13D                 3:162K MYnd Analytics, Inc.              S2 Filings LLC/FA

General Statement of Beneficial Ownership   —   Sch. 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D      General Statement of Beneficial Ownership           HTML     48K 
 2: EX-1        Underwriting Agreement                              HTML     47K 
 3: EX-11       Statement re: Computation of Earnings Per Share     HTML     23K 


EX-11   —   Statement re: Computation of Earnings Per Share


This exhibit is an HTML Document rendered as filed.  [ Alternative Formats ]



    

Exhibit 11

 

WRITTEN CONSENT
OF
THE NOTEHOLDERS
OF
MYND ANALYTICS, INC.

 

The undersigned, being the Majority Holders of that certain Second Amended and Restated Note Purchase Agreement dated as of December 23, 2015 (the “Agreement”), by and among MYnd Analytics, Inc., f/k/a CNS Response, Inc., a Delaware Corporation (the “Company”), and certain of the investors listed on Schedule A thereto (each, an Investor,” and together, the “Investors”), consent to the adoption of the following resolutions (certain capitalized terms used but not defined herein have the meanings assigned to them in the Agreement.):

 

WHEREAS, since June, 2009 the Company has been involved in litigation with Leonard J. Brandt and Brandt Ventures, GP in a number of civil actions in multiple venues, including litigation in the Superior Court for the State of California, Orange County captioned Leonard J. Brandt and Brandt Ventures, GP v. CNS Response, Inc., Sail Venture Partners and David Jones, Superior Court for the State of California, Orange County, case no. 30-2011-00465655-CU-WT-CJC, and the Court of Chancery of the State of Delaware, captioned Leonard J. Brandt v. CNS Response, Inc., C.A. No. 7652-VGS, respectively (together, referred to as the “Litigation”); and

 

WHEREAS, the Company, Leonard J. Brandt and Brandt Ventures, GP entered into a Settlement Agreement (the “Settlement Agreement”) to resolve the Litigation, pursuant to which the Company must issue (i) a secured convertible promissory note in the amount of $50,000 and (ii) a warrant to purchase up to 1,000,000 paid and non-assessable shares of the Company's common stock at an initial exercise price of $0.05 per share;

 

WHEREAS, the Company intended to issue a note under the Agreement to Mr. Brandt in the amount of $50,000 (the “Brandt Note”) and a warrant to purchase 1,000,000 shares of common stock (the “Brandt Warrant”), as required pursuant to the terms of the Settlement Agreement; and

 

WHEREAS, pursuant to Section 1.3 of the Agreement, the Company's ability to issue notes and warrants under the Agreement expired on August 11, 2016; and

 

WHEREAS, the Investors executing this Written Consent constitute the Majority Holders (as defined in the Agreement) and hold Notes (as defined in the Agreement) whose aggregate principal amount represents a majority of the total outstanding principal amounts of all the current outstanding Notes under the Agreement, including RSJ Private Equity investični fond s promӗnným základním kapitálem, a.s. f/k/a RSJ Private Equity uzavřený investični fond a.s.; and

 

 

 

 

WHEREAS, in accordance with Section 4.3 of the Agreement, the Investors executing this Written Consent now desire to amend Section 1.3 of the Agreement for the purpose of extending the period of time by which the Company is permitted to complete fundraising thereunder to issue the Brandt Note and Brandt Warrant;

 

NOW THEREFORE LET IT BE:

 

RESOLVED, that the Investors executing this Written Consent agree to amend the Agreement in the form as attached as Exhibit A hereto.

 

This Written Consent may be signed in two or more counterparts, each of which shall be deemed an original, and all of which shall be deemed one instrument.

 

[SIGNATURE PAGE FOLLOWS]

 

 2 

 

 

IN WITNESS WHEREOF, the undersigned noteholders have duly executed this Written Consent as of August 15, 2016.

 

  By: /s/ Jan Vyhnalek
    Name:  Jan Vyhnalek
    Title: Statutory Director
      RSJ Private Equity investični fond s promӗnným základním kapitálem. a.s., a Czech joint stock corporation registered in the Commercial Register maintained by the Municipal Court of Prague under section B, file number 16313, identification number 24704415, with its registered office at Na Florenci 2116/15, Nové Mĕsto, 110 00 Praha 1, Czech Republic and acting in respect of its sub-fund (podfond) RSJ Gradus podfond, RSJ Private Equity investični fond s promӗnným základním kapitálem, a.s. and its assigns
       
  By: /s/ John Pappajohn
    Name: John Pappajohn
    Title: Investor
       
  By:  
    Name: Thomas T. Tierney
    Title: Trustee
      Thomas T. and Elizabeth C. Tierney Family Trust

 

[Signature Page to Written Consent]

 

 

 

 

EXHIBIT A

 

 

 

 

AMENDMENT NO.1

 

TO

 

SECOND AMENDED AND RESTATED

NOTE AND WARRANT PURCHASE AGREEMENT

 

THIS AMENDMENT NO. 1 (this “Amendment”) to that SECOND AMENDED AND RESTATED NOTE AND WARRANT PURCHASE AGREEMENT (the “Second Amended Agreement”) is made as of August 15, 2016, by and among MYnd Analytics, Inc., f/k/a CNS Response, Inc., a Delaware corporation (the “Company”), and the certain investors hereto (each, an “Investor” and together, the “Investors”).

 

RECITALS

 

WHEREAS, the Company entered into that certain Note Purchase Agreement, dated as of September 22, 2014, with those certain investors named therein (the “Original Agreement”);

 

WHEREAS, the Company entered into that certain Amendment No. 1 to the Note Purchase Agreement, dated as of April 14, 2015, with those certain investors named therein (“Amendment No. 1”), to increase the aggregate amount of notes issuable thereunder, and extend the period of time by which the Company was permitted to complete such fundraising; and

 

WHEREAS, the Company entered into that certain Amended and Restated Note Purchase Agreement, dated as of June 2, 2015, with those certain investors named therein (the “Amended and Restated Note Purchase Agreement”), solely to update the Original Agreement, as amended by Amendment No. 1, for the revisions provided by Amendment No.1; and

 

WHEREAS, the Company entered into that certain Omnibus Amendment to the Amended and Restated Note Purchase Agreement and the notes, dated as of September 14, 2015, with those certain investors named therein (the “Omnibus Amendment”), to amend the Amended and Restated Note Purchase Agreement and the notes to set the conversion price of all notes purchased and sold pursuant to the Amended and Restated Note Purchase Agreement, both those that have been purchased and sold before the date of the Omnibus Amendment and those that were purchased and sold at any time thereafter, in the event of a qualified financing conversion or a voluntary conversion, at $0.05 per share (as adjusted for stock splits, stock dividends, combinations or the like affecting the common stock of the Company); and

 

WHEREAS, the Company entered into that certain Second Amended Agreement, dated as of December 23, 2015, to amend and restate the Amended and Restated Note Purchase Agreement, as amended by the Omnibus Amendment.

 

WHEREAS, this Amendment extends the period of time by which the Company may conduct “Additional Closings”, as defined in the Second Amended Agreement.

 

NOW, THEREFORE, in consideration of the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Investors executing this Amendment agree as follows:

 

Section 1.   Amendment to Section 1.3, “Additional Closings”.  Section 1.3 of the Second Amended Agreement is hereby amended by deleting the third sentence therein in its entirety, and replacing it with the following:

 

 

 

 

“Such Additional Closings may occur at anytime prior to September 1, 2016, and provided that the Company shall have the sole discretion to terminate the sales of Notes and Warrants at any time without notice to any existing Inventor or potential Investor.”

 

Section 1.2.      No Further Amendment. Except as expressly amended by this Amendment, the Second Amended Agreement are in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Second Amended Agreement or any of the documents referred to therein.

 

Section 1.3.      Effect of Amendment. This Amendment shall amend and form a part of the Second Amended Agreement for all purposes and is expressly incorporated into the Second Amended Agreement, and the Company and each party hereto shall be bound hereby. From and after the execution of this Amendment by the parties hereto, any references to the Second Amended Agreement shall be deemed a reference to the Second Amended Agreement as amended hereby. This Amendment shall be deemed to be in full force and effect from and after the execution of this Amendment by the parties hereto. To the extent that any term or provision of this Amendment may be deemed expressly inconsistent with any term or provision in the Second Amended Agreement, the terms and provisions of this Amendment shall control.

 

Section 1.4.      Entire Agreement. Subject to Section 1.3 of this Amendment, the Second Amended Agreement, as amended by this Amendment, constitute the complete understanding of the Company and the Investors, regarding the subject matter hereof and supersede any and all other agreements, either oral or in writing, between the Company and the Investors with respect to the subject matter hereof and thereof, and no other statement or promise relating to the subject matter hereof or thereof which is not contained herein or therein, shall be valid or binding.

 

Section 1.5.      Other Provisions. The following sections of the Second Amended Agreement are hereby incorporated by reference into, and made applicable to, this Amendment as if set forth herein, mutatis mutandis: Section 4.3 (Amendments and Waivers); Section 4.4 (Notices); Section 4.6 (Governing Law); Section 4.7 (Severability) and Section 4.8 (Binding Effect; Assignment).

 

[Signature Page Follows]

 

 

 

 

The Company and the Investors below named have caused this Amendment to be executed by their respective officers thereunto duly authorized, in each case as of the date first written above.

 

  MYND ANALYTICS, INC.
       
  By: /s/ Paul Buck
    Name: Paul Buck
    Title: Chief Financial Officer
       
  MAJORITY HOLDERS:
       
  By: /s/ Jan Vyhnalek
    Name: Jan Vyhnalek
    Title: Statutory Director
      RSJ Private Equity investični fond s promӗnným základním kapitálem. a.s., a Czech joint stock corporation registered in the Commercial Register maintained by the Municipal Court of Prague under section B, file number 16313, identification number 24704415, with its registered office at Na Florenci 2116/15, Nové Mĕsto, 110 00 Praha 1, Czech Republic and acting in respect of its sub-fund (podfond) RSJ Gradus podfond, RSJ Private Equity investični fond s promӗnným základním kapitálem, a.s. and its assigns
       
  By: /s/ John Pappajohn
    Name: John Pappajohn
    Title: Investor
       
  By:  
    Name: Thomas T. Tierney
    Title: Trustee
      Thomas T. and Elizabeth C. Tierney
      Family Trust

 

 


Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘SC 13D’ Filing    Date    Other Filings
Filed on:9/15/163,  4
9/1/16
8/15/1610-Q,  8-K
8/11/164
12/23/153,  4,  8-K
9/14/154,  8-K
6/2/158-K
4/14/15
9/22/148-K
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Filing Submission 0001615774-16-007199   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

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