exhibit104yorkville-bird






Exhibit 10.4  EXECUTION VERSION    EXTENSION AGREEMENT    This EXTENSION AGREEMENT (this “Agreement”) is dated as of December 19, 2022,  by and between BIRD GLOBAL, INC. (the “Obligor”) and YA II PN, LTD. (the “Lender”).    Background    On or about May 12, 2022, the Obligor and the Lender entered into a Standby Equity  Purchase Agreement (the “SEPA”). On or about May 19, 2022, the Lender loaned $21.0 million to  the Obligor as evidenced by that certain Promissory Note (the “Note”) (No. BRDS-1) in the original  principal amount of $21.0 million. As of the date hereof, the outstanding balance on the Note is  $4,200,000, plus a redemption premium of $84,000. The outstanding balance on the Note was due  on December 15, 2022. The Obligor has requested the Lender to extend the maturity date of the  Note until February 15, 2023, which the Lender is willing to do pursuant to the terms set forth in  this Agreement.    For purposes hereof, the “Financing Documents” shall mean this Agreement, the Note and  any other agreements, documents or items delivered to the Lender in connection with any of the  foregoing.    Accordingly, for good and valuable consideration, the receipt and sufficiency of which are  hereby acknowledged, it is hereby agreed by and between the Obligor and the Lender as follows:    Acknowledgement of Debt    1. On the date hereof, the Obligor hereby acknowledges and agrees that it is liable to the Lender  in the amounts set forth in the Recitals, which are hereby incorporated herein by reference.   All amounts due as set forth in this Section 1, and all amounts heretofore or hereafter payable  under this Agreement and/or the Financing Documents, including, without limitation, all  amounts owed under this Agreement or the Financing Documents and representing a portion  of the amounts outstanding thereunder, shall be referred to herein collectively as the  “Obligations.”    Waiver of Claims  2. The Obligor hereby acknowledges and agrees that neither it nor its subsidiaries, agents,  attorneys, shareholders, advisors, officers, directors, employees, affiliates,  predecessors,  successors, and assigns (collectively, as the “Obligor Parties”) has any offsets, defenses,  claims, or counterclaims against the Lender or its investment manager, or their respective  agents, attorneys, shareholders, managers, members, advisors, officers, directors,  employees, affiliates, partners, predecessors, successors, and assigns (collectively, as the  “Released Parties”), with respect to the Obligations, the Financing Documents, the  transactions set forth or otherwise contemplated in this Agreement, or otherwise, and that if  any Obligor Party now has, or ever did have, any offsets, defenses, claims, or counterclaims  against any of the Released Parties, whether known or unknown, at law or in equity, from  the beginning of the world through this date and through the time of execution of this  





 






  2     Error! Bookmark not defined.  Agreement, all of them are hereby expressly WAIVED, and each Obligor Party hereby  RELEASES each of the Released Parties therefrom.  Payment Extension and Payoff Amount    3. On the terms and subject to the conditions set forth herein, including the issuance by Obligor  of the Extension Fee set forth in Section 4 hereof, the Lender hereby agrees to extend (the  “Payment Extension”) the December 15, 2022 payment under the Note until the earlier of  (i) an Event of Default as defined in the Note occurring after the date hereof (other than the  failure to make the December 15, 2022 payment on or before that date), or (ii) February 15,  2023. On or before February 15, 2023 (or upon an Event of Default occurring after the date  hereof as defined in the Note other than the failure to make the December 15, 2022 payment  on or before that date), the Obligor shall pay the Lender the aggregate amount of $4,284,000  (the “Payoff Amount”) in satisfaction of the Note; provided that if the Payoff Amount is not  received by the Lender on or before February 15, 2023, then the Payoff Amount shall be  increased retroactively at an annual rate of 15% from December 15, 2022 until indefeasibly  paid.   The Obligor represents and warrants to the Lender that it is not party to, and will not enter  into, any contractual provision that would prohibit or restrict its ability to make the payment  set forth in this Section 3.  Extension Fee    4. In consideration of the Payment Extension, the Obligor shall pay the Lender an extension  fee (the “Extension Fee”) equal to 8.7%, of the aggregate outstanding amount of  $4,284,000 (i.e., $372,708), payable by the issuance of restricted shares of the Obligor’s  Class A Common Stock on or before December 23, 2022. The number of shares to be  issued in satisfaction of the Extension Fee shall (i) be 2,484,720 shares, calculated based  on the closing price of the Obligor’s Class A Common Stock on the Nasdaq Global  Market, as reported by Bloomberg, LLC during regular trading hours, on December 16,  2022 (i.e., $0.15 per share), and (ii) be validly issued, fully paid and non-assessable. The  number of shares issuable hereunder (the “Fee Shares”) shall be set forth in a Cross  Receipt to be signed by the Obligor and the Lender. The Fee Shares shall be subject to  piggy-back registration rights. If at any time the Obligor proposes to file a registration  statement under the Securities Act with respect to the registration of equity securities, or  securities or other obligations exercisable or exchangeable for, or convertible into equity  securities, for its own account or for the account of shareholders of the Obligor (other than  a registration statement (i) filed on Form S-8 or otherwise in connection with any  employee stock option or other benefit plan or (ii) pursuant to a registration statement on  Form S-4), then the Obligor shall include the Fee Shares in such registration statement.   The Obligor shall fully cooperate with the Lender in removing restrictive legends upon  either the Fee Shares are either (i) registered for sale by the Lender or (ii) eligible for resale  pursuant to Rule 144 promulgated by the U.S. Securities Exchange Commission pursuant to  





 






  3     Error! Bookmark not defined.  a legal opinion rendered by the Lender’s legal counsel. The Obligor agrees that the Lender  would suffer irreparable harm if it fails to strictly comply with this Section 4 and, in such  event, the Lender shall be entitled to specific enforcement of the terms and provisions hereof  (without the need to post a bond or other security) in addition to any other remedy that the  Lender may have at law or in equity.   The Obligor’s failure to issue the shares (timely or at all) in satisfaction of the Extension  Fee shall constitute an Event of Default under the Note.     Conditions Precedent    5. The Lender’s agreements, all as more particularly set forth herein, shall be effective   concurrently with the Obligor’s receipt of $4.0 million of gross proceeds from Bird Canada,  Inc.  Ratification of Financing Documents  6. The Obligor hereby ratifies, confirms, and reaffirms that all and singular the terms and  conditions of the Financing Documents and acknowledge and agree that, except as otherwise  expressly amended pursuant to the terms and conditions of this Agreement, all terms and  conditions of the foregoing shall remain in full force and effect.   Counterparts  7. It is the intention of the parties hereto that this Agreement may be executed in any number  of counterparts (including by facsimile or e-mail transmission of an Adobe portable file  format document (also known as a PDF file)), and by the different parties hereto on the same  or separate counterparts, each of which shall be deemed to be an original instrument but all  of which together shall constitute one and the same agreement.  Miscellaneous  8. This Agreement shall be governed by and interpreted in accordance with the laws of the  State of New York, without regard to the principles of conflict of laws. Each of the parties  consents to the jurisdiction of the state courts of the State of New York and the U.S. District  Court for the District of New York sitting in Manhattan in connection with any dispute  arising under this Note, and hereby waives, to the maximum extent permitted by law, any  objection, including any objection based on forum non conveniens, to the bringing of any  such proceeding in such jurisdictions.   9. If an Event of Default has occurred after the date hereof, then the Obligor shall reimburse  the Lender promptly for all reasonable and documented out-of-pocket fees, costs and  expenses, including, without limitation, reasonable attorneys’ fees and expenses, incurred  by the Lender in any action in connection with this Agreement, including, without limitation,  





 






  4     Error! Bookmark not defined.  those incurred: (i) during any workout or attempted workout and/or in connection with the  rendering of legal advice as to the Lender’s rights, remedies and obligations; (ii) collecting  any sums that become due to the Lender in accordance with the terms of this Note; (iii)  defending or prosecuting any proceeding or any counterclaim to any proceeding or appeal;  or (iv) the protection, preservation or enforcement of any rights or remedies of the Lender.     [Remainder of Page Intentionally Left Blank]  





 






   [Signature Page to Extension Agreement]  IN WITNESS WHEREOF, this Agreement has been executed as of the date first set forth  above.        YA II PN, LTD.    By: Yorkville Advisors Global, LP  Its: Investment Manager    By: Yorkville Advisors Global, LLC  Its: General Partner      By: /s/ Troy J. Rillo     Name: Troy J. Rillo  Title: Member            





 






[Signature Page to Extension Agreement]  BIRD GLOBAL, INC.     By_/s/ Shane Torchiana___________________  Name: Shane Torchiana   Title: Chief Executive Officer