Exhibit 10.1


 


THIS CONVERTIBLE PROMISSORY NOTE (THIS
“NOTE”) AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY AND RESALE. THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED EXCEPT
AS PERMITTED UNDER THE SECURITIES ACT AND THE APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM.
INVESTORS SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF
TIME. THE COMPANY AND THE SECURITIES INTO WHICH IT MAY BE CONVERTED MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN
FORM, SCOPE AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT ANY SALE OR OTHER DISPOSITION IS IN COMPLIANCE WITH THE SECURITIES
ACT AND ANY APPLICABLE STATE SECURITIES LAWS.


 


GRAF INDUSTRIAL CORP.

CONVERTIBLE PROMISSORY NOTE


 


	
        Principal Amount: Not to Exceed $1,500,000

        (See Schedule A)

         
	Dated as of August 5, 2020


FOR VALUE RECEIVED
and subject to the terms and conditions set forth herein, Graf Industrial Corp., a Delaware corporation (the “Maker”),
promises to pay to the order of Graf Acquisition LLC or its registered assigns or successors in interest (the “Payee”),
or order, the principal balance as set forth on Schedule A hereto in lawful money of the United States of America; which
schedule shall be updated from time to time by the parties hereto to reflect all advances and readvances outstanding under this
Note; provided that at no time shall the aggregate of all advances and readvances outstanding under this Note exceed one
million five hundred thousand dollars ($1,500,000). Any advance hereunder shall be made by the Payee upon receipt of a written
request of the Maker, related to ongoing expenses reasonably related to the business of the Maker and the consummation of the Business
Combination (as defined below), and shall be set forth on Schedule A. Any advance hereunder shall only be made by the Payee
as, and to the extent, expenses are incurred or are reasonably expected to be incurred and the amounts of such advance shall be
used to pay or repay such expenses. All payments on this Note shall be made by check or wire transfer of immediately available
funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in
accordance with the provisions of this Note.


 


1.      
Principal. All unpaid principal under this Note shall be due and payable in full on the earlier of (i) October 31, 2020
and (ii) the effective date of a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business
combination, involving the Company and one or more businesses (the “Business Combination”) (such earlier
date, the “Maturity Date”), unless accelerated upon the occurrence of an Event of Default (as defined
below). Any outstanding principal amount to date under this Note may be prepaid at any time by the Maker, at its election and without
penalty; provided, however, that Payee shall have a right to first convert such principal balance pursuant to Section
5 below upon notice of such prepayment.


 


2.      
Interest. No interest shall accrue on the unpaid balance of this Note.


 


3.      
Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection
of any sum due under this Note, including (without limitation) reasonable attorney’s fees, then to the payment in full of
any late charges and finally to the reduction of the unpaid principal balance of this Note.


 


4.      
Events of Default. The occurrence of any of the following shall constitute an event of default (“Event of
Default”):


 


(a)    
Failure to Make Required Payments. Failure by the Maker to pay the principal amount due pursuant to this Note within
five (5) business days of the date specified above or issue warrants pursuant to Section 5 hereof, if so elected by the
Payee.


 






     


     


    

 


(b)   
Voluntary Bankruptcy, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency,
reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of
its property, or the making by it of any assignment for the benefit of creditors, or the failure of the Maker generally to pay
its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any of the foregoing.


 


(c)    
Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises
in respect of the Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part
of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of sixty (60) consecutive days.


 


5.      
Conversion 


 


(a)    
Optional Conversion. At the option of the Payee, at any time on or prior to the Maturity Date, any amounts outstanding
under this Note (or any portion thereof), up to $1,500,000 in the aggregate, may be converted into warrants to purchase shares
of common stock of the Maker (“Common Stock”) at a conversion price (the “Conversion
Price”) equal to $0.75 per warrant (“Warrants”). If the Payee elects such conversion, the
terms of such Warrants issued in connection with such conversion shall be identical to the warrants issued to the Payee in the
private placement that closed on October 18, 2018 (the “Private Placement Warrants”) in connection with
the Maker’s initial public offering that closed on October 18, 2018 (the “IPO”); provided,
however, that the Warrants shall not be subject to forfeiture in connection with the Business Combination and that each
Warrant shall entitle the holder thereof to purchase three-fourths (3/4) share of Common Stock at a price of $11.50 per share,
subject to the same adjustments applicable to the Private Placement Warrants. Before this Note may be converted under this Section
5(a), the Payee shall surrender this Note, duly endorsed, at the office of the Maker and shall state therein the amount of
the unpaid principal of this Note to be converted and the name or names in which the certificates for Warrants are to be issued
(or the book-entries to be made to reflect ownership of such Warrants with the Maker’s transfer agent). The conversion shall
be deemed to have been made immediately prior to the close of business on the date of the surrender of this Note and the person
or persons entitled to receive the Warrants upon such conversion shall be treated for all purposes as the record holder or holders
of such Warrants as of such date. Each such newly issued Warrant shall include a restricted legend that contemplates the same restrictions
as the Private Placement Warrants. The Warrants and shares of Common Stock issuable upon exercise of the Warrants shall constitute
“Registrable Securities” pursuant to that certain Registration Rights Agreement, dated October 15, 2018, among the
Maker, the Payee and certain other security holders named therein.


 


(b)   
Remaining Principal. All accrued and unpaid principal of this Note that is not then converted into Warrants, shall
continue to remain outstanding and to be subject to the conditions of this Note.


 


(c)    
Fractional Warrants; Effect of Conversion. No fractional Warrants shall be issued upon conversion of this Note. In
lieu of any fractional Warrants to the Payee upon conversion of this Note, the Maker shall pay to the Payee an amount equal to
the product obtained by multiplying the Conversion Price by the fraction of a Warrant not issued pursuant to the previous sentence.
Upon conversion of this Note in full and the payment of any amounts specified in this Section 5(c), this Note shall be cancelled
and void without further action of the Maker or the Payee, and the Maker shall be forever released from all its obligations and
liabilities under this Note.


 


6.      
Remedies.


 


(a)    
Upon the occurrence of an Event of Default specified in Section 4(a) hereof, the Payee may, by written notice to
the Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other
amounts payable thereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary
notwithstanding.


 






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(b)   
Upon the occurrence of an Event of Default specified in Sections 4(b) or 4(c), the unpaid principal balance
of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable,
in all cases without any action on the part of the Payee.


 


7.      
Waivers. The Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand,
notice of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings
instituted by the Payee under the terms of this Note, and all benefits that might accrue to the Maker by virtue of any present
or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property,
from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension
of time for payment; and the Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue
hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the
Payee.


 


8.      
Unconditional Liability. The Maker hereby waives all notices in connection with the delivery, acceptance, performance,
default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the
liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or
modification granted or consented to by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications
that may be granted by the Payee with respect to the payment or other provisions of this Note, and agrees that additional makers,
endorsers, guarantors, or sureties may become parties hereto without notice to the Maker or affecting the Maker’s liability
hereunder.


 


9.      
Notices. All notices, statements or other documents which are required or contemplated by this Note shall be in writing
and delivered (i) personally or sent by first class registered or certified mail, overnight courier service to the address designated
in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be
designated in writing by such party, or (iii) by electronic mail, to the electronic mail address most recently provided to such
party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so
transmitted shall be deemed to have been given on the day of delivery, if delivered personally or by facsimile or electronic transmission;
one (1) business day after delivery to an overnight courier service; or five (5) days after mailing if sent by first class registered
or certified mail.


 


10.   
Construction. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.


 


11.   
Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.


 


12.   
Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest
or claim of any kind (“Claim”) in or to any distribution of or from the trust account established in which the
proceeds of the IPO conducted by the Maker (including the deferred underwriters discounts and commissions) and certain proceeds
of the sale of the Private Placement Warrants were deposited, as described in greater detail in the registration statement and
prospectus filed with the U.S. Securities and Exchange Commission in connection with the IPO on October 18, 2018, and hereby agrees
not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever.


 


13.   
Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written
consent of the Maker and the Payee.


 


14.   
Successors and Assigns. Subject to the restrictions on transfer in Sections 15 and 16 below, the rights
and obligations of the Maker and the Payee hereunder shall be binding upon and benefit the successors, assigns, heirs, administrators
and transferees of any party hereto (by operation of law or otherwise) with the prior written consent of the other party hereto
and any attempted assignment without the required consent shall be void.


 






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15.   
Transfer of this Note or Securities Issuable on Conversion. With respect to any sale or other disposition of this Note
or securities into which this Note may be converted, the Payee shall give written notice to the Maker prior thereto, describing
briefly the manner thereof, together with (i) except for a Permitted Transfer, in which case the requirements in this clause (i)
shall not apply, a written opinion reasonably satisfactory to the Maker in form and substance from counsel reasonably satisfactory
to the Maker to the effect that such sale or other distribution may be effected without registration or qualification under any
federal or state law then in effect and (ii) a written undertaking executed by the desired transferee reasonably satisfactory to
the Maker in form and substance agreeing to be bound by the restrictions on transfer contained herein. Upon receiving such written
notice, reasonably satisfactory opinion, or other evidence, and such written acknowledgement, the Maker, as promptly as practicable,
shall notify the Payee that the Payee may sell or otherwise dispose of this Note or such securities, all in accordance with the
terms of the note delivered to the Maker. If a determination has been made pursuant to this Section 15 that the opinion
of counsel for the Payee, or other evidence, or the written acknowledgment from the desired transferee, is not reasonably satisfactory
to the Maker, the Maker shall so notify the Payee promptly after such determination has been made. Each Note thus transferred shall
bear a legend as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless
in the opinion of counsel for the Maker such legend is not required in order to ensure compliance with the Securities Act. The
Maker may issue stop transfer instructions to its transfer agent in connection with such restrictions. Subject to the foregoing,
transfers of this Note shall be registered upon registration on the books maintained for such purpose by or on behalf of the Maker.
Prior to presentation of this Note for registration of transfer, the Maker shall treat the registered holder hereof as the owner
and holder of this Note for the purpose of receiving all payments of principal hereon and for all other purposes whatsoever, whether
or not this Note shall be overdue and the Maker shall not be affected by notice to the contrary. For purposes hereof “Permitted
Transfer” shall have the same meaning as any transfer that would be permitted for the Private Placement Warrants
under the Letter Agreement, dated October 15, 2018, among the Maker, the Payee and the other parties thereto.


 


16.   
Acknowledgment. The Payee is acquiring this Note for investment for its own account, not as a nominee or agent, and
not with a view to, or for resale in connection with, any distribution thereof. The Payee understands that the acquisition of this
Note involves substantial risk. The Payee has experience as an investor in securities of companies and acknowledges that it is
able to fend for itself, can bear the economic risk of its investment in this Note, and has such knowledge and experience in financial
and business matters that it is capable of evaluating the merits and risks of this investment in this Note and protecting its own
interests in connection with this investment.


 


[Signature Page Follows]


 




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IN WITNESS WHEREOF,
the Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and
year first above written.


 


 


	 	GRAF INDUSTRIAL CORP.
	 	 	 
	 	By:	/s/ James A. Graf
	 	Name:	James A. Graf
	 	Title:	Chief Executive Officer



 


Acknowledged and agreed as of the date
first above written.


 


 


	GRAF ACQUISITION LLC	 
	 	 	 
	By:	/s/ James A. Graf	 
	Name:	James A. Graf	 
	Title:	Manager	 






 




    [Signature
Page to Convertible Promissory Note]


     


    


 


SCHEDULE A


 


Subject to the terms
and conditions set forth in the Note to which this schedule is attached to, the principal balance due under the Note shall be set
forth in the table below and shall be updated from time to time to reflect all advances and readvances outstanding under the Note.


 


	Date	 	Drawing	 	Description	 	Principal Undrawn Balance	 
	August 5, 2020	 	$100,000	 	Payment of HSR review fee	 	$1,400,000