Exhibit 4.9


 


HEARTBEAM, INC.


 


AMENDMENT NO. 5 TO 2015 NOTE SUBSCRIPTION
AGREEMENTS


 


This Amendment No. 5 to 2015
Note Subscription Agreements (this “Amendment”) is made and entered into effective as of May 13, 2020 (the “Effective
Date”) by and among HeartBeam, Inc., a Delaware corporation (the “Company”) and certain of the persons and/or
entities (each, an “Investor” and together, the “Investors”) set forth on the signature pages to
the Subscription Agreements (as defined below). Capitalized terms not defined herein shall have the terms ascribed to them in the Subscription
Agreements (as defined below) or the Notes (as defined below).


 


RECITALS


 


A. The
Company and the Investors are parties to certain 2015 Note Subscription Agreements (each, a “Subscription Agreement”
and together, the “Subscription Agreements”), each by and between the Company and the Investor set forth on the signature
page thereto.


 


B. The
Company sold and issued, and the Investors purchased convertible promissory notes in the aggregate principal amount of approximately $3,000,000
(each, a “Note” and together, the “Notes”), pursuant to the Subscription Agreements.


 


C. Recital
B of each Subscription Agreement, as previously amended, provides that the aggregate amount of Note principal issued and sold pursuant
to all such Subscription Agreements shall not exceed $4,500,000.


 


D. Section
4(a) of each Subscription Agreement provides that the Subscription Agreements may be amended only upon the written consent of the Company
and the Investors representing a majority of all principal then owing pursuant to outstanding Notes issued pursuant to the Subscription
Agreements (a “Majority in Interest of Investors”).


 


E. The
Company and the undersigned Investors, representing a Majority in Interest of Investors, wish to increase the aggregate principal amount
of all Notes available for sale pursuant to Subscription Agreements to $5,000,000.


 


AGREEMENT


 


NOW THEREFORE, in consideration
of the foregoing, and the representations, warranties, and conditions set forth below, the parties hereto, intending to be legally bound,
hereby agree as follows:


 


1. Amendment
to Recital B. Effective as of the Effective Date, Recital B of each Subscription Agreement is hereby amended, restated and replaced
in its entirety with the following language:


 


“B. The
Company may, in its sole discretion, issue and sell additional 2015 convertible promissory notes in a form substantially similar to the
Note (each, also a “Note” and together with all other Notes, the “Notes”) to certain other investors
identified by the Company from time to time (each, also an “Investor” and together with all other Investors, the “Investors”)
pursuant to a 2015 note subscription agreement in a form substantially similar to this Agreement (each, also an “Agreement”
and together with all other Agreements, the “Agreements”), provided the aggregate amount of Note principal issued and
sold pursuant to all such Agreements does not exceed $5,000,000.”


 






     


     


    

 


2. Miscellaneous.


 


(a) Amendment.
This Amendment may not be amended, waived, discharged or terminated other than by a written instrument referencing this Amendment and
signed by the Company and the Investors representing a Majority in Interest of Investors.


 


(b) Governing
Law. This Amendment and all actions arising out of or in connection with this Agreement shall be governed by and construed in accordance
with the laws of the State of California, without regard to the conflicts of law provisions of the State of California or of any other
state.


 


(c) Entire
Agreement. This Amendment, the Notes and the Subscription Agreements, (to the extent not hereby amended or previously amended), including
the exhibits attached thereto, constitute the full and entire understanding and agreement between the parties for the subjects hereof
and thereof. No party shall be liable or bound to any other party in any manner for the subjects hereof or thereof by any warranties,
representations or covenants except as specifically set forth herein or therein.


 


(d) Severability.
If any provision of this Amendment becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, portions
of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Amendment, and such court will
replace such illegal, void or unenforceable provision of this Amendment with a valid and enforceable provision that will achieve, to the
extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Amendment
shall be enforceable in accordance with its terms.


 


(e) Counterparts.
This Amendment may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute
one and the same agreement. Facsimile copies of signed signature pages will be deemed binding originals.


 


(signature page follows)


 




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The parties are executing
this Amendment No. 5 to 2015 Note Subscription Agreements effective as of the Effective Date.


 


	 	COMPANY:
	 	 
	 	HEARTBEAM, INC.


 


	 	By:	/s/ Richard Brounstein
	 	Name: 	Richard Brounstein
	 	Title:	CFO


 


HeartBeam, Inc.


Amendment No. 5 to 2015 Note Subscriptions
Agreements


 




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The parties are executing
this Amendment No. 5 to 2015 Note Subscription Agreements effective as of the Effective Date.


 


	 	INVESTOR:


 


	 	By:	/s/ Branislav Vajdic  



 


	 	Print Signatory Name: 	Branislav Vajdic


 


	 	INVESTOR:


 


	 	By:	/s/ Wim Elfrink



 


	 	Print
Signatory Name: 	Wim Elfrink



 


	 	Investor Name: 	Elfrink Living Trust
	 	 	(applicable if stockholder is an entity)


 


	 	INVESTOR:


 


	 	By:	/s/ Wim Elfrink



 


	 	Print Signatory Name: 	Wim Elfrink



 


	 	Investor Name:	WPE Ventures Partnership
	 	 	(applicable if stockholder is an entity)



 


	 	Title: 	Partner
	 	 	(applicable if stockholder is an entity)


 


HeartBeam, Inc.


Amendment No. 5 to 2015 Note Subscriptions
Agreements


 




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The parties are executing
this Amendment No. 5 to 2015 Note Subscription Agreements effective as of the Effective Date.


 


	 	INVESTOR:



 


	 	By:	/s/ Wim Elfrink



 


	 	Print Signatory Name:	Wim Elfrink



 


	 	Investor Name:	C Elfrink and W Elfrink
	 	 	(applicable if stockholder is an entity)


 


	 	INVESTOR:


 


	 	By:	/s/ Wim Elfrink



 


	 	Print Signatory Name: 	Wim Elfrink



 


	 	Investor Name: 	WS Investment Company LLC
	 	 	(applicable if stockholder is an entity)



 


	 	Title: 	Principal
	 	 	(applicable if stockholder is an entity)


 


	 	INVESTOR:


 


	 	By:	/s/ Stephen Mullaney



 


	 	Print Signatory Name: 	Stephen Mullaney


 


HeartBeam, Inc.


Amendment No. 5 to 2015 Note Subscriptions
Agreements


 




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The parties are executing
this Amendment No. 5 to 2015 Note Subscription Agreements effective as of the Effective Date.


 


	 	INVESTOR:


 


	 	By:	/s/ Richard Brounstein



 


	 	Print Signatory Name: 	Richard Brounstein



 


	 	Investor Name:	Trust of Richard and Stephanie Brounstein
	 	 	(applicable if stockholder is an entity)



 


	 	Title: 	Trustee
	 	 	(applicable if stockholder is an entity)


 


	 	INVESTOR:


 


	 	By:	/s/ Richard Brounstein



 


	 	Print Signatory Name: 	Richard Brounstein



 


	 	Investor Name:	CTRLCFO, LLC
	 	 	(applicable if stockholder is an entity)



 


	 	Title:	President
	 	 	(applicable if stockholder is an entity)


 


	 	INVESTOR:


 


	 	By:	/s/ James O’Rourke



 


	 	Print Signatory Name:	James O’Rourke


 


HeartBeam, Inc.


Amendment No. 5 to 2015 Note Subscriptions
Agreements


 




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The parties are executing
this Amendment No. 5 to 2015 Note Subscription Agreements effective as of the Effective Date.


 


	 	INVESTOR:


 


	 	By:	/s/ Marga Ortigas-Wedekind



 


	 	Print Signatory Name:	Marga Ortigas-Wedekind



 


	 	Investor Name:	Marga Ortigas-Wedekind Trust
	 	 	(applicable if stockholder is an entity)



 


	 	Title:	Authorized Person
	 	 	(applicable if stockholder is an entity)


 


HeartBeam, Inc.


Amendment No. 5 to 2015 Note Subscriptions
Agreements


 


 


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