Exhibit 3.1
CORRECTED
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
MYND ANALYTICS, INC.
Pursuant to Section 103(f)
of the General
Corporation Law of the State
of Delaware
MYnd Analytics, Inc. (the
“
Corporation
”), a corporation organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "
DGCL
"),
DOES HEREBY CERTIFY:
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1.
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The name of the Corporation is: MYnd Analytics, Inc.
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2.
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That a Certificate of Amendment was filed by the Secretary of State of Delaware on September 19,
2016 (the “
Certificate
”) and that said Certificate requires correction as permitted by Section 103(f) of the
DGCL.
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3.
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The inaccuracy or defect of said Certificate to be corrected is as follows:
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The Certificate amended and restated
Article IV of the Corporation's Certificate of Incorporation in its entirety with respect to the Corporation's capital stock, whereas
the Certificate was intended to only amend and restate Section 4.B. of said Article IV with respect to the Corporation's common
stock.
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4.
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The Certificate of Amendment is hereby corrected to read in its entirety, as set forth on
Exhibit
A
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IN WITNESS WHEREOF
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the Corporation has caused this Corrected Certificate of Amendment to be signed by an authorized officer of the Corporation, as
of this 13th day of July 2017.
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MYND ANALYTICS, INC.
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By:
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/s/ George C. Carpenter IV
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Name:
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George C. Carpenter IV
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Title:
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President
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EXHIBIT A
CERTIFICATE OF AMENDMENT OF
CERTIFICATE OF INCORPORATION OF
MYND ANALYTICS, INC.
MYnd Analytics, Inc., a
corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware does hereby certify:
FIRST:
That at a
meeting of the Board of Directors (the “
Board
”) of MYnd Analytics, Inc. (formerly known as CNS Response, Inc.)
(the “
Corporation
”) on September 2, 2015, resolutions were duly adopted setting forth a proposed amendment of
the Certificate of Incorporation of the Corporation (the “
Charter
”) approving of a reverse stock split by a
ratio of not less than 1-for-10 and not more than 1-for-200 (the “
Range
”), as determined at the sole discretion
of the Board (the “
Reverse Split
”), and, declaring said amendment (hereinafter the “
Amendment
”),
to be advisable and calling for consent of the stockholders of the Corporation for consideration thereof. The resolutions setting
forth the proposed Amendment is substantially as follows:
RESOLVED
, that the
Board declares it advisable and in the best interests of the Corporation to amend the Charter to effect the Reverse Split, at a
ratio with the Range, as determined by the Board, at its discretion; and be it further
RESOLVED
, that the
Certificate of Incorporation of the Corporation be amended by amending and restating Section 4.B. of Article IV thereof relating
to the common stock of the Corporation, so that, as amended and restated, Section 4.B. of Article IV shall be and read in its entirety,
as follows:
"
Section 4.B.
Common
Stock. The total number of shares of common stock which the Corporation shall have authority to issue is Five Hundred Million (500,000,000)
shares, with a par value of $0.001 per share. Stockholders shall not have preemptive rights or be entitled to cumulative voting
in connection with the shares of the Corporation's common stock.
Upon the effectiveness of the amendment
to the Certificate of Incorporation adding this paragraph thereto (the “
Effective Time
”), each 200 shares of
outstanding common stock, par value $0.001 per share (for purposes of this Article IV “
Old Common Stock
”), of
the Corporation issued and outstanding immediately prior to the Effective Time shall be, without any action of the holder thereof,
automatically combined into one (1) validly issued, fully paid and non-assessable share of common stock, par value $0.001 per share
(for purposes of this Article IV, the “
New Common Stock
”) of the Corporation (the “
Reverse Split
”).
Each stock certificate that, immediately prior to the Effective Time, represented shares of Old Common Stock shall, from and after
the Effective Time, automatically and without the necessity of presenting the same for exchange, represent that number of whole
shares of New Common Stock into which the shares of Old Common Stock represented by such certificate shall have been combined.
No fractional shares of common stock will be issued as a result of the Reverse Split. In the event the Reverse Split leaves a stockholder
with a fraction of a share, the number of shares due to the stockholder shall be rounded up. For example, if the Reverse Split
leaves an individual stockholder with one and one half shares, the stockholder will be issued, post Reverse Split, two whole shares."
SECOND:
That thereafter,
pursuant to resolution of its Board of Directors, an annual meeting of the stockholders of the Corporation was duly called and
held on October 28, 2015 upon notice in accordance with Section 222 of the General Corporation Law of the State of Delaware, pursuant
to which a majority of each class of stockholders voted in favor of the Amendment.
THIRD:
That said
Amendment was duly adopted on August 24, 2016 in accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
FOURTH:
That the
capital of said Corporation shall not be reduced under or by reason of said Amendment.
FIFTH:
The foregoing
Amendment shall be effective as of September 21, 2016, at 8:00 a.m. Eastern Time.
SIXTH:
Except as
set forth in this Amendment, the Certificate of Incorporation, as previously amended, remains in full force and effect.
IN WITNESS WHEREOF
,
the undersigned has executed this Certificate of Amendment of the Certificate of Incorporation of MYnd Analytics, Inc. as of September
19, 2016.
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MYND ANALYTICS, INC.
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By:
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/s/ George C. Carpenter_IV
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Name:
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George C. Carpenter IV
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Title:
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President
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Exhibit 10.29
CHAIRMAN SERVICES AGREEMENT
THIS CHAIRMAN SERVICES AGREEMENT (this “
Agreement
”)
is made as of July 14, 2017, by and between Robin Smith MD MBA ("Advisor") and MYnd Analytics, Inc. with addresses at
26522 La Alameda, Suite 290, Mission Viejo, CA 92691 (the "
Company
"), and shall become effective on the date the
Company's securities become initially listed on The Nasdaq Capital Market (the “
Effective Date
”). When referred
to collectively, the Company and the Consultant shall be referred to as the “Parties”.
Recitals
WHEREAS, on the terms and
subject to the conditions contained in this Agreement, the Company desires to obtain certain management, chairman and other advisory
services from the Advisor, and the Advisor has agreed to perform such services; and
WHEREAS, this Agreement
has been approved by the Company’s Board of Directors (the "
Board
").
NOW, THEREFORE, in consideration
of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1.
Chairman of the Board Services
.
1.1
Board of Directors Supervision
.
The activities of the Advisor (excluding those as Board member and Chairman of the Board) to be performed under this Agreement
shall be subject to the supervision of the Board and subject to reasonable policies not inconsistent with the terms of this Agreement
adopted by the Board and in effect from time-to-time. Where not required by applicable law or regulation, the Advisor shall not
require the prior approval of the Board to perform her duties under this Agreement. Notwithstanding the foregoing, the Advisor
shall not have the authority to bind the Company, and nothing contained herein shall be construed to create an agency relationship
between the Company and the Advisor.
1.2
Services
.
1.2.1
Scope
. Subject to
any limitations imposed by applicable law or regulation, the Advisor shall continue to be Chairman of the Board and render or cause
to be rendered at times advisory and management services to the Company, which services may include providing advice and assistance
concerning: strategic vision and planning; identification of growth and expansion opportunities; financial planning; and corporate
partnering and business development (collectively, the “
Services
”).
1.2.2
Board and Chairman
Services
. The Company hereby requests and Advisor hereby agrees to serve as a strategic Advisor and Chairman of the Board of
the Company and serve as non-executive Chairman. In order to enable Advisor to continue to be elected as a member of the Company’s
Board, and to be selected as Chairman of the Board, throughout the Term (as defined herein in
Section 2
), the Company shall
nominate Advisor in such capacity at every stockholders meeting of the Company during the Term.
1.3
Non-exclusivity
.
The Parties agree that Advisor will be performing the Services to the Company on a non-exclusive basis. The Advisor shall devote
such time and efforts to the performance of Services contemplated hereby as the Advisor deems reasonably necessary or appropriate;
provided, however, that while no minimum number of hours is required to be devoted by the Advisor on a weekly, monthly, annual
or other basis, the Advisor does agree that she will devote substantial time and effort toward the success of the Company. The
Company acknowledges and agrees that the Services are not exclusive to the Company and that the Advisor has and will continue to
have other companies, clients, business, and foundations that Advisor works with and may become employed with. The Company acknowledges
that the Advisor may render similar Services to other persons and entities, subject only to Section 5 below and corporate policies
(from time to time enacted) relating to conflict of interests and related parties transactions covering activities of Board members.
2.
Term
.
2.1
Services.
The Advisor shall
provide the Services set forth in
Section 1
above from the Effective Date until the earlier of (a) termination of this Agreement
by mutual agreement of the Advisor and the Company and (b) the eighteen (18) month anniversary of the Effective Date (the "Initial
Period"); provided
that this Agreement shall be automatically extended for additional one year periods beyond
the Initial Period unless the Advisor or the Company provides written notice of its desire not to automatically extend the term
of this Agreement to the other Party hereto at least ninety (90) days prior to the end of the then current term (such period, the
“
Term
”).
2.
2
Termination
. No
termination of this Agreement, whether pursuant to this
Section 2
or otherwise, will affect the Company’s duty to
pay any Annual Fees (as defined herein in
Section 3
) accrued, or to reimburse any cost or expense incurred pursuant to
Section
3.3
hereof,
prior to the effective date of such termination. Upon termination of this Agreement, the Advisor’s
right to receive any further fee or reimbursement for costs and expenses that have not accrued or been incurred to the date of
termination shall cease and terminate. Additionally, the obligations of the Company under
Section 3.3
(Expenses),
Section 7
(Indemnification), the provisions of
Section 1.2
above (whether in respect of or relating to Services rendered
prior to termination of this Agreement or in respect of or relating to any Services provided after termination of this Agreement)
and the provisions of
Section 14
(Governing Law) will also survive any termination of this Agreement to the maximum extent
permitted under applicable law. In the event of an earlier termination of this Agreement by mutual agreement, any unvested
Restricted Stock or stock options granted to Advisor, will automatically vest fully as of the date of termination and, with respect
to stock options, the Advisor will have the right to exercise such options and purchase the underlying shares for the remaining
term of any such options.
2.2
Support
Staff and Facilities.
The Company shall furnish Advisor with a New York City Office to work and support staff, office, telephone,
and other facilities and equipment necessary to the performance of the Services, subject to the ordinary budget process for the
Company.
3
.
Compensation
.
3.1
Annual
Fee.
In consideration of the management, consulting and financial services to be rendered by Advisor, the Company will pay
to the Advisor an annual base fee in cash in the aggregate amount equal to $300,000 (the “
Annual Fee
”), payable
in equal monthly installments. Notwithstanding anything to the contrary in the foregoing, the Advisor shall be entitled to be paid
the full amount of the $300,000 Annual Fee for the 2017 calendar year. In addition, the Advisor is eligible to receive additional
cash bonus awards as determined by the compensation committee of the Board.
3.2
Offset;
Withholding; Taxes
.
The Company shall pay the Annual Fee without offset, deduction or withholding of any kind or for
any purpose and agrees to pay the associated taxes, federal and state, for the awards of Restricted Shares (as hereinafter defined)
issued to the Advisor. The Advisor shall pay any federal, state and local taxes payable by it with respect to the Advisor’s
cash retainer fee.
3.3
The Advisor’s
Expenses
.
The Company will reimburse the Advisor for travel expenses incurred by attending meetings for and with the
Company, producing documented presentations and materials and any such other expenses as the Company shall first expressly agree
to in writing. The Company shall reimburse the Advisor, if not charged on a corporate card, for all costs incurred by Advisor for
documented Company expenses, within fifteen (15) days of incurring such expenses.
3.4 In addition to the Annual
Fee: (a) on the Effective Date, Advisor shall receive a one-time immediate grant of 25,000 Restricted Shares (the “
Initial
Restricted Stock Award
”) under the Company's 2012 Omnibus Incentive Compensation Plan (the "
Plan
");
(b) on the Effective Date, options to purchase 75,000 shares of common stock under the Plan (subject to stockholder approval at
the Company's 2017 annual meeting of stockholders); and (c) on the date of the Company’s 2017 annual meeting of stockholders,
if and only if proposed amendments to the Plan are approved (including an increase to the per person annual award limit therein
to at least 150,000 shares), the Company shall grant the Advisor an additional award of options to purchase 50,000 shares of common
stock (the "
Option Grant Subject to Increase
"). In addition, at each annual meeting of stockholders of the Company
thereafter beginning in 2018 during the Term of this Agreement, the Advisor will receive a grant of 25,000 shares of restricted
stock under the Plan (the "
Annual Restricted Stock Award
", and together with the Initial Restricted Stock Award,
the "
Restricted Shares
") and options to purchase 75,000 shares of common stock under the Plan. All Restricted
Shares shall immediately vest upon award, and all options granted under this Agreement, other than the Option Grant Subject to
Increase, shall vest 1/3 on the date of grant, 1/3 on the six month anniversary of the date of grant and 1/3 on the twelve month
anniversary of the date of grant. The Option Grant Subject to Increase shall vest on December 1, 2018.
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4.
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[Intentionally Omitted].
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5.
Non-Disclosure
.
5.1 The Advisor understands and
agrees that the Confidential Information and Trade Secrets constitute valuable assets of the Company and may not be converted to
its own use. The Advisor hereby agrees that throughout the term of this Agreement and at all times after, for so long as the information
at issue remains either Confidential Information or a Trade Secret, the Advisor will not, directly or indirectly, reveal, divulge,
or disclose to any person or entity not expressly authorized by the Company any Confidential Information or Trade Secrets and will
not, directly or indirectly, use or make use of any Confidential Information or Trade Secrets in connection with any business activity
other than that of the Company.
Anything herein
to the contrary notwithstanding, the Advisor shall not be restricted from disclosing or using Confidential Information or Trade
Secrets that are required to be disclosed by law, court order or other legal process; provided, however, that in the event disclosure
is required by law, the Advisor shall provide the Company with prompt written notice of such requirement in time to permit the
Company to seek an appropriate protective order or other similar protection prior to any such disclosure by the Advisor.
The parties acknowledge
and agree that this Agreement is not intended to, and will not, alter or diminish either the Company’s rights or the Advisor’s
obligations under any state or federal statutory or common law regarding confidential information, trade secrets and unfair trade
practices and all potential remedies under such laws remain available.
For purposes
of this Agreement, “
Confidential Information
” means all data and information relating to the business of the
Company that is disclosed to the Advisor or of which the Advisor becomes aware as a consequence of his employment and that has
value to the Company and is not generally known to those not employed or otherwise engaged by the Company. “Confidential
Information” shall include, but is not limited to, financial plans and data concerning Company; management planning information;
Company’s business plans or strategies (including, without limitation, any merger or acquisition plans); sources of supply;
“know how;” Company’s operational methods; market studies; marketing plans or strategies; product development
techniques or plans; client and prospective client lists; details of client, supplier and vendor contracts; current and anticipated
client requirements; past, current and planned research and development; business acquisition plans; employee compensation and
other personnel information; and new personnel acquisition plans. “Confidential Information” shall not include data
or information (a) which has been voluntarily disclosed to the public by Company, except where such public disclosure was made
without authorization from the Company; (b) which has been independently developed and disclosed by Persons other than the Company
or its principals or representatives; or (c) which has otherwise entered the public domain through lawful means. This definition
shall not limit any definition of “confidential information” or any equivalent term under applicable state or federal
law.
For purposes
of this Agreement, “
Trade Secret
” means information, without regard to form, relating to the Company, its activities,
businesses or clients, including, but not limited to, technical or nontechnical data, a formula, a pattern, a compilation, a program,
a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential
clients or suppliers, which is not commonly known by or available to the public via lawful means and which: (A) derives economic
value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use; and (B) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
Trade Secret shall include, but not be limited to, client lists, client billing and pricing
information, technical information regarding the Company’s intellectual property, product development information, patent
information and all other information permitted to be covered under the Uniform Trade Secrets Act. This definition shall not limit
any definition of “trade secret” or any equivalent term under applicable state or federal law.
5.2 The Advisor agrees that it
will not retain or destroy, and will immediately return to the Company on or prior to the end of the Term, or at any other time
the Company requests such return, any and all property of the Company that is in its possession or subject to its control, including,
but not limited to, keys, credit and identification cards, equipment, client files and information, and all Confidential Information
and Trade Secrets. The Advisor will not make, distribute or retain copies of any such information or property. The Advisor agrees
that it will reimburse the Company for all of its costs, including reasonable attorneys’ fees, of recovering the above materials
and otherwise enforcing compliance with this provision if the Advisor does not return the materials to the Company on or prior
to the end of the Term or at any other time the materials are requested by Company, or if the Advisor otherwise fails to comply
with this provision.
5.3 The Advisor acknowledges
and agrees that the services to the Company as non-employee Chairman and Advisor are special, unique and extraordinary and that
in the course of performing such services the Advisor will be provided with and have access to and knowledge of Confidential Information
and Trade Secrets that would be extremely valuable to competitors of the Company. The Advisor further acknowledges and agrees that,
due to the unique nature of the Company’s business, the loss of any of its clients or the improper use of its Confidential
and Proprietary Information could create significant instability and cause substantial and irreparable damage to the Company and
therefore the Company has a strong legitimate business interest in protecting the continuity of its business interests and the
restrictions herein agreed to by the Advisor narrowly and fairly serves such an important and critical business interest of the
Company.
5.4 Each of the rights and remedies
enumerated in Section 5.5 shall be independent of the others and shall be in addition to and not in lieu of any other rights and
remedies available to the Company at law or in equity. If any of the covenants contained in this Section 5, or any part of any
of them, is hereafter construed or adjudicated to be invalid or unenforceable, the same shall not affect the remainder of the covenant
or covenants or rights or remedies which shall be given full effect without regard to the invalid portions. If any of the covenants
contained in this Section 5 is held to be invalid or unenforceable because of the duration of such provision or the area covered
thereby, the parties agree that the court or arbitrator making such determination shall have the power to reduce the duration and/or
area of such provision and in its reduced form such provision shall then be enforceable. No such holding of invalidity or unenforceability
in one jurisdiction shall bar or in any way affect the Company’s right to the relief provided in this Section 5 or otherwise
in the courts of any other state or jurisdiction within the geographical scope of such covenants as to breaches of such covenants
in such other respective states or jurisdictions, such covenants being, for this purpose, severable into diverse and independent
covenants.
5.5 The provisions of this Section 5 shall
survive any termination of this Agreement.
6.
Decisions and Authority of the Advisor
.
6.1
No Liability
. In no
event will the Advisor or be liable to the Company for any indirect, special, incidental or consequential damages relating to services
performed hereunder, including, without limitation, lost profits or savings, whether or not such damages are foreseeable, or for
any third party claims (whether based in contract, tort or otherwise), relating to the Services to be provided by the Advisor hereunder.
The Company reserves the right to make all decisions with regard to any matter upon which the Advisor has rendered advice and consultation,
and there shall be no liability of the Advisor for any such advice accepted by the Company pursuant to the provisions of this Agreement.
The Advisor will not be liable for any mistakes of fact, errors of judgment or losses sustained by the Company or for any acts
or omissions of any kind (including acts or omissions of the Advisor), except to the extent caused by intentional misconduct of
the Advisor as finally determined by a court of competent jurisdiction. In such case, the Advisor’s liability relating to
the services provided hereunder, shall be limited to direct damages not to exceed the total fees paid to Advisor for the Services
provided to the Company through the date of any claim.
7.
Indemnification
.
7.1
Indemnification
. The
Company shall (i) indemnify the Advisor and its respective Affiliates, directors, officers, employees and agents (collectively,
the
"Indemnified Party"
), to the fullest extent permitted by law, from and against any and all actions, causes
of action, suits, claims, liabilities, losses, damages and costs and expenses in connection therewith, including without limitation
reasonable attorneys’ fees and expenses (“
Indemnified Liabilities
”) to which the Indemnified Party may
become subject, directly or indirectly caused by, related to or arising out of the Services or any other advice or Services contemplated
by this Agreement or the engagement of the Advisor pursuant to, and the performance by such Advisor of the Services contemplated
by, this Agreement, and (ii) promptly reimburse the Indemnified Party for Indemnified Liabilities as incurred, in connection with
the investigation of, preparation for or defense of any pending or threatened claim or any action or proceeding arising therefrom,
whether or not such Indemnified Party is a party and whether or not such claim, action or proceeding is initiated or brought by
or on behalf of the Company or Advisor and whether or not resulting in any liability. If and to the extent that the foregoing undertaking
may be unenforceable for any reason, the Company hereby agrees to make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities that is permissible under applicable law.
7.2
Limitations on Indemnity;
Restrictions on Liability
. The Company shall not be liable under the indemnification contained in Section 7.1 hereof with respect
to the Indemnified Party to the extent that such Indemnified Liabilities are found in a final non-appealable judgment by a court
of competent jurisdiction to have resulted directly from the Indemnified Party’s willful misconduct. The Company further
agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract, tort or otherwise) to the Company,
holders of its securities or its creditors related to or arising out of the engagement of the Advisor pursuant to, or the performance
by the Advisor of the Services contemplated by, this Agreement.
8.
Notices
. All notices, demands,
or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and
shall be deemed to have been given or made when (i) delivered personally to the recipient, (ii) telecopied to the recipient
(with a hard copy sent to the recipient by reputable overnight courier service (charges prepaid)) if telecopied before 5:00 p.m.
Eastern Standard Time on a business day, and otherwise on the next business day, (iii) one (1) business day after being sent
to the recipient by reputable overnight courier service (charges prepaid) or (iv) received via electronic mail by the recipient
if received via electronic mail before 5:00 p.m. Eastern Standard Time on a business day, and otherwise on the next business day
after such receipt. Such notices, demands and other communications shall be sent to the address for such recipient indicated below
or to such other address or to the attention of such other person as the recipient party has specified by prior written notice
to the sending party.
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Notices to the Advisor:
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Notices to the Company:
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Robin Smith
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George Carpenter
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420 Lexington Avenue, suite 350
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Mynd Analytics
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New York, NY 10021
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26522 La Alameda, Suite 290
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robin@robinlsmith.com
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Mission Viejo, CA 92691
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GCarpenter@myndanalytics.com
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9.
Severability
. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the Parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any such terms, provisions, covenants and restrictions which may be hereafter declared
invalid, illegal, void or unenforceable.
10.
Entire Agreement
. This Agreement
contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes any prior communication
or agreement with respect thereto.
11.
Counterparts
. This Agreement
may be executed in multiple counterparts, and any Party may execute any such counterpart, each of which when executed and delivered
will thereby be deemed to be an original and all of which counterparts taken together will constitute one and the same instrument.
The delivery of this Agreement may be effected by means of an exchange of facsimile or portable document format (.pdf) signatures.
12.
Amendments and Waiver.
No amendment
or waiver of any term, provision or condition of this Agreement will be effective, unless in writing and executed by both the Company
and the Advisor. No waiver on any one occasion will extend to, effect or be construed as a waiver of any right or remedy on any
future occasion. No course of dealing of any person nor any delay or omission in exercising any right or remedy will constitute
an amendment of this Agreement or a waiver of any right or remedy of any Party hereto.
13.
Successors and Assigns
. All
covenants and agreements contained in this Agreement by or on behalf of any of the Parties hereto will bind and inure to the benefit
of the respective successors and assigns of the Parties hereto whether so expressed or not. Neither the Company nor the Advisor
may assign its rights or delegate its obligations hereunder without the prior written consent of the other Party, which consent
shall not be unreasonably withheld; provided, that the Advisor may assign this Agreement to any of its Affiliates.
14.
Governing Law
. This Agreement
shall be governed by and construed in accordance with the substantive laws of the state of Delaware, without giving effect to any
choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than
the state of Delaware.
15.
Waiver of Jury Trial
. To the
extent not prohibited by applicable law which cannot be waived, each of the Parties hereto hereby waives, and covenants that it
will not assert (whether as plaintiff, defendant or otherwise), any right to trial by jury in any forum in respect of any issue,
claim, demand, cause of action, action, suit or proceeding arising out of or based upon this Agreement or the subject matter hereof,
in each case whether now existing or hereafter arising and whether in contract or tort or otherwise. Any of the Parties hereto
may file an original counterpart or a copy of this Agreement with any court as written evidence of the consent of each of the Parties
hereto to the waiver of its right to trial by jury.
16.
No Strict Construction
. The
Parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question
of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties hereto, and no presumption
or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.
17.
Headings; Interpretation
. The
headings in this Agreement are for convenience and reference only and shall not limit or otherwise affect the meaning hereof. The
use of the word “including” in this Agreement will be by way of example rather than by limitation.
IN WITNESS WHEREOF,
the Parties hereto have executed this Strategic Advisory Agreement as of the date first written above.
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Robin Smith
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Director, MYnd Analytics, Inc.
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By:
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/s/ Robin Smith
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By:
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/s/ John Pappajohn
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Exhibit 99.1
MYND
ANALYTICS ANNOUNCES UPLISTING TO NASDAQ AND PRICING OF $8.79m UNDERWRITTEN OFFERING
MISSION VIEJO
, California, July 14, 2017 (GLOBE NEWSWIRE)
— MYnd Analytics, Inc. (NASDAQ:MYND), a predictive analytics company which brings objective physical findings to psychiatric
treatment in order to reduce trial and error prescribing, announced today the pricing of its firm commitment underwritten public
offering of 1,675,000 shares of its common stock and accompanying warrants to purchase up to 1,675,000 shares of its common stock,
at a combined public offering price of $5.25 per share and accompanying warrant, for a total offering size of $8,793,750. The warrants
will be immediately exercisable for one share of common stock at an exercise price of $5.25 per share, subject to adjustments,
and will expire five years after the issuance date. The shares of common stock and warrants can only be purchased together in the
offering but will be immediately separable upon issuance. All of the shares of common stock and warrants in the offering are being
sold by MYnd Analytics, Inc. The common stock and warrants have been approved for listing on The NASDAQ Capital Market and will
begin trading thereon under the symbols "MYND" and "MYNDW", respectively, at the opening of trading on Friday,
July 14, 2017.
In addition, MYnd has granted the underwriters of the offering a
45-day option to purchase up to an additional 251,250 shares of common stock and/or warrants at the public offering price less
the underwriting discount, solely to cover over-allotments, if any. The offering is expected to close on Wednesday, July 19, 2017,
subject to customary closing conditions.
Maxim Group LLC and Aegis Capital Corp. are acting as joint book-running
managers, and R.F. Lafferty & Co., Inc. is acting as co-manager for the offering.
MYnd expects to receive net proceeds from the offering, after deducting
underwriting discounts and commissions and other expenses payable by it, of approximately $7.75 million.
The shares are being offered pursuant to a registration statement
on Form S-1, as amended, previously filed with the Securities and Exchange Commission (SEC). A preliminary prospectus related to
the offering was filed with the SEC on June 30, 2017. The final prospectus will be filed with the SEC. When available, copies of
the final prospectus relating to this offering may also be obtained by contacting Maxim Group LLC, 405 Lexington Ave., New York,
NY, 10174; Attn: Prospectus Department, or by Telephone: (800) 724-0761; or Email: syndicates@maximgrp.com, or by accessing the
SEC's website at www.sec.gov.
This press release shall not constitute an offer to sell or
the solicitation of an offer to buy these securities, nor shall qualification there be any sale of these securities in any
jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or under the securities
laws of any such jurisdiction.
About MYnd Analytics, Inc.
MYnd Analytics, Inc. (
www.myndanalytics.com
) is a predictive
analytics company that has developed a decision support tool to help physicians reduce trial and error treatment in mental health
and provide more personalized care to patients. The Company’s Psychiatric EEG Evaluation Registry, or PEER Online, is a
registry and reporting platform that allows medical professionals to exchange treatment outcome data for patients referenced to
objective neurophysiology data obtained through a standard electroencephalogram (EEG). Based on the Company’s original physician-developed
database, there are now more than 38,000 outcomes for over 10,000 unique patients in the PEER registry. The goal of PEER Online
is to provide objective, personalized data to assist physicians in the selection of appropriate medications.
To read more about the benefits of this patented technology for
patients, physicians and payers, please visit
www.myndanalytics.com
.
Forward-Looking Statements
This press release contains forward-looking statements, including
those relating to the use of proceeds from the sale of common stock and the expected closing of the offering. Forward-looking statements
are generally statements that are not historical facts, and can be identified by the words "anticipate," "believe,"
"estimate," "expect," "intend," "goal," "may," "might," "plan,"
"predict," "project," "target," "potential," "will," "would," "could,"
"should," "continue," and similar expressions. Forward-looking statements are based on management's current
plans, estimates, assumptions and projections, and speak only as of the date they are made. Forward-looking statements involve
inherent risks and uncertainties, most of which are difficult to predict and are generally beyond our control. Actual results or
outcomes may differ materially from those implied by the forward-looking statements as a result of the impact of a number of factors.
These risks and uncertainties include, without limitation, our ability to successfully complete the offering, the volatility of
our stock price may prevent shares purchased in the offering from being resold at or above the price paid for them, purchasers
of shares in the offering will suffer immediate and substantial dilution, we may use the proceeds from the offering in ways that
may not enhance our operating results or the market price of our ordinary shares, and other risks and uncertainties which are discussed
in more detail in our Annual Report on Form 10-K for the year ended September 30, 2016, filed on December 22, 2016, and our other
reports filed with the Securities and Exchange Commission.
###
Contact
:
Contact:
Stan Wunderlich
Investor Relations
CFSG1
800-625-2236
info@cfsg1.com
www.launchpadir.net