Co-Diagnostics 提交 8-K/A 修订案，仅调整 ATM 还款协议附件（移除 Maxim 当事方身份），无新增经济条款

----- form8-ka.htm -----
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K/A
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
October 9, 2026
Co-Diagnostics,
Inc.
(Exact
name of registrant as specified in its charter)
Utah
001-38148
46-2609363
(State
or other jurisdiction
(Commission
(IRS
Employer
of
incorporation)
File
Number)
Identification
No.)
2401
S. Foothill Drive
,
Suite D
,
Salt Lake City
,
Utah
84109
(Address
of principal executive offices)
(Zip
Code)
(801)
438-1036
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
☐
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of Each Class
Trading
Symbol(s)
Name
of each exchange on which registered
Common
Stock, $0.001 par value per share
CODX
The
Nasdaq
Capital Market
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company
☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Explanatory
Note
This
Amendment No. 1 on Form 8-K/A amends the Current Report on Form 8-K filed by Co-Diagnostics, Inc. (the “Company”) on October
13, 2026 (the “Original Form 8-K”). This Amendment is being filed to (i) file a revised version of the ATM Waterfall Distribution
Agreement as Exhibit 10.4, which reflects the removal of Maxim Group LLC (“Maxim”) as a party thereto, (ii) file as Exhibit
10.7 the ATM Payment Direction Letter between the Company and Maxim, pursuant to which Maxim agreed to remit net proceeds from sales
under the Company’s at-the-market offering program to the deposit account specified therein, and (iii) amend and restate Item
1.01 to reflect such exhibits. Except as expressly set forth herein, this Amendment does not amend, update or restate any other information
in the Original Form 8-K.
Item
1.01 Entry into a Material Definitive Agreement.
Senior
Secured Convertible Loan Transaction with J.J. Astor & Co.
On
October 9, 2026, Co-Diagnostics, Inc. (the “Company”) entered into a Loan Agreement (the “Loan Agreement”) with
J.J. Astor & Co. (the “Lender”), pursuant to which the Lender agreed to provide loans to the Company in an aggregate
principal funding amount of up to $3.1 million. At the initial closing, the Lender funded an initial loan of $2.1 million and the Company
issued to the Lender a senior secured convertible installment promissory note having an original principal amount of $2.835 million (the
“Initial Note”). Beginning 60 days after the date of the Loan Agreement, subject to the satisfaction of the conditions set
forth in the Loan Agreement, the Company may elect to borrow an additional $1.0 million and issue an additional senior secured convertible
installment promissory note having an original principal amount of $1.35 million (the “Additional Note” and, together with
the Initial Note, the “Notes”). The original principal amounts of the Notes reflect a factor rate of 1.35 times the applicable
funded amount. The Lender retained a 4% origination fee from the initial funded amount, resulting in initial net cash proceeds of approximately
$2.016 million before other transaction expenses. Under the terms of the Loan Agreement and the Notes, the Company must maintain a minimum
cash balance of $250,000 while the Notes are outstanding. The Company intends to use the net proceeds for general working capital purposes.
The
Notes are payable in 30 weekly installments and are secured by a senior-priority lien on substantially all assets of the Company and
its existing subsidiaries as subsidiary guarantors pursuant to a pledge and security agreement (the “Pledge and Security Agreement”)
and a subsidiary guarantee (the “Subsidiary Guarantee”). The Company may prepay a Note at any time without penalty. If a
Note is paid in full within 45 days after its funding date and no event of default has occurred, the repayment amount will be reduced
to reflect a factor rate of 1.29 times the applicable funded amount, less all weekly installment payments previously made. Upon an event
of default, the outstanding balance becomes immediately due and payable, the outstanding principal amount of the Initial Note and (if
issued) the Additional Note is increased to 120% of the then-outstanding principal amount(s) and bear default interest at 19% per annum,
compounded daily (the “Default Amount”) and may be converted by the Lender at the Event of Default Conversion Price (as defined
in the Loan Agreement).
The
Lender may convert all or any portion of the payment amount under a Note into shares of the Company’s common stock (the “Conversion
Shares”) at a conversion price equal to the greater of (i) 90% of the lowest volume-weighted average price of the common stock
during the 10 consecutive trading days immediately preceding the conversion date and (ii) the minimum price determined under the applicable
Nasdaq listing rules, subject to a floor price equal to 20% of that Nasdaq minimum price and to customary adjustments. On the six-month
anniversary of the closing date, and every six months thereafter, the floor price will be reset to the lower of (i) the floor price then
in effect or (ii) 20% of the lowest volume weighted average price of the Company’s common stock during the twenty trading days
preceding such reset; provided that the floor price will not be reduced below 20% of the Nasdaq minimum price unless and until the Company
obtains stockholder approval.
Following
an uncured event of default and acceleration, the applicable conversion price would be the greater of (i) 80% of the lowest volume-weighted
average price during the same 10-trading-day period and (ii) the floor price. The conversion price is also subject to anti-dilution adjustments
and may be reduced if the Company issues securities at a lower price, subject to the floor price. If the Lender does not receive the
full number of shares that it would have received at the applicable VWAP-based discount price because the conversion price is limited
by the floor price, the Nasdaq minimum price, the exchange cap or certain other limitations, the Company is required to pay a cash make-whole
amount. Conversions are subject to a 9.99% beneficial ownership limitation, which the Lender may increase to no more than 19.99% on 61
days’ prior written notice, and to the aggregate issuance limitations under the Nasdaq listing rules unless stockholder approval
is obtained.
In
connection with the transaction, the Company issued the Lender 600,000 shares of common stock as commitment shares (the “Commitment
Shares”) at the closing date, subject to a make-whole provision, which provides that the company will issue make-whole shares if
the Commitment Shares are sold on a day when the closing price of the Company’s stock is less than $0.218. The Company also agreed
to reserve shares for issuance upon conversion of the Notes and to seek stockholder approval for issuances exceeding the applicable Nasdaq
issuance limitation.
The
Loan Agreement requires the Company to file a preliminary proxy statement within five business days after funding of the Initial Loan,
mail the definitive proxy statement within five business days after SEC clearance, and hold the stockholder meeting within 30 days after
mailing.
The
Company and the Lender entered into an ATM Waterfall Distribution Agreement. Under that agreement, 100% of the net proceeds from sales
under the Company’s existing at-the-market offering program (the “ATM Program”), after deduction only of the sales
agent’s commissions, are to be remitted to a deposit account subject to a deposit account control agreement in favor of the Lender.
The initial $1.0 million of such net proceeds is payable to the Lender. Thereafter, 80% of such net proceeds is applied to the Notes
and 20% is released to the Company until the required weekly installment payments for the applicable week have been satisfied; for the
remainder of that week, 25% is applied to the Notes and 75% is released to the Company. Following an event of default, 80% of such net
proceeds is applied to the obligations under the Notes and 20% is released to the Company. Distributions to the Company are further limited
if the market value of the registered, freely tradeable shares available under the ATM Program is less than 200% of the outstanding principal
amount of the Notes. The ATM Waterfall Distribution Agreement remains in effect until all obligations under the Notes have been paid
in full. The Company and Maxim also entered into an ATM Payment Direction Letter, pursuant to which the Company directed Maxim to remit
all net proceeds from the ATM Program, after deducting Maxim’s sales commissions and other ATM expenses, to the deposit account
specified therein within three business days following Maxim’s receipt of the proceeds, unless and until the Company notifies Maxim
in writing that the applicable deposit account control agreement has been terminated.
The
Loan Agreement contains customary representations, warranties, affirmative and negative covenants and events of default, including covenants
relating to additional indebtedness and equity issuances, maintenance and use of the ATM Program, maintenance of Nasdaq listing, timely
filing of reports under the Securities Exchange Act of 1934, as amended, and maintenance of specified share reserves and ATM availability.
The
Company and the Lender also entered into a registration rights agreement (the “Registration Rights Agreement”) pursuant to
which, the Company file a registration statement with the SEC within 30 days from the funding date of the Initial Loan to register for
resale by the Lender a number of shares of common stock equal to 200% of the Conversion Shares (including Make Whole Shares), assuming
the issuance of the Additional Note, and the Commitment Shares, and cause such registration statement to become effective within 60 days
of the funding date of the Initial Loan, subject to applicable Securities and Exchange Commission guidance and limitations.
Placement
Agency Agreement with Maxim Group LLC
In
connection with the transaction, the Company entered into a placement agency agreement (the “Placement Agency Agreement”)
with Maxim Group LLC (“Maxim”), pursuant to which Maxim agreed to act as the Company’s exclusive placement agent on
a reasonable best efforts basis in connection with the placement of the Notes. The Company agreed to pay Maxim a cash fee equal to 5.0%
of the gross proceeds received by the Company at the initial closing and at any additional closing and to reimburse Maxim for its reasonable
expenses, including fees and disbursements of its counsel, up to $5,000. Maxim also is entitled to a transaction fee equal to 5.0% of
the proceeds of any public or private financing or other capital-raising transaction consummated during the 12-month period following
the closing (or, if no closing occurs, termination of the engagement) with an investor actually contacted or introduced to the Company
by Maxim during the term of the Placement Agency Agreement. The engagement continues until the earlier of the final closing of the placement,
including any additional closings, and termination by either party upon written notice. The Placement Agency Agreement also contains
customary representations, warranties, covenants, closing conditions, indemnification and contribution provisions and other terms and
conditions.
The
foregoing descriptions of the Loan Agreement, the Notes, the Pledge and Security Agreement, the Subsidiary Guarantee, the ATM Waterfall
Distribution Agreement, the ATM Payment Direction Letter, the Registration Rights Agreement and the Placement Agency Agreement do not
purport to be complete and are qualified in their entirety by reference to the full text of such documents, copies of which are filed
as exhibits to the Original Form 8-K or this Amendment, as applicable, and are incorporated herein by reference.
Item
2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The
information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.
Item
3.02 Unregistered Sales of Equity Securities.
The
information set forth under Item 1.01 above is incorporated by reference into this Item 3.02.
The
Company issued the Initial Note and the Commitment Shares, and may issue the Additional Note, the Conversion Shares, and any make-whole
shares, in reliance on the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities
Act”), provided by Section 4(a)(2) thereof and/or Rule 506(b) of Regulation D promulgated thereunder. The Lender represented that
it is an “accredited investor” as defined in Rule 501(a) of Regulation D. Neither the Notes nor the Commitment Shares were,
and any Conversion Shares or make-whole shares issued absent registration will not be, registered under the Securities Act and may not
be offered or sold in the United States absent registration or an applicable exemption from registration.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
Description
4.1
Form
of Senior Secured Convertible Note (incorporated by reference to Exhibit 4.1 to the Current
Report on Form 8-K filed on October 13, 2026)
10.1
Loan
Agreement between Co-Diagnostics, Inc. and J.J. Astor & Co., dated October 9, 2026 (incorporated
by reference to Exhibit 10.1 to the Current Report on Form 8-K filed on October 13, 2026)
10.2
Pledge
and Security Agreement, dated October 9, 2026 (incorporated by reference to Exhibit 10.2
to the Current Report on Form 8-K filed on October 13, 2026)
10.3
Subsidiary
Guarantee dated October 9, 2026 (incorporated by reference to Exhibit 10.3 to the Current
Report on Form 8-K filed on October 13, 2026)
10.4
ATM
Waterfall Distribution Agreement between Co-Diagnostics, Inc. and J.J. Astor & Co., dated October 9, 2026
10.5
Registration
Rights Agreement between Co-Diagnostics, Inc. and J.J. Astor & Co., dated October 9,
2026 (incorporated by reference to Exhibit 10.5 to the Current Report on Form 8-K filed on
October 13, 2026)
10.6
Placement
Agency Agreement between Co-Diagnostics, Inc. and Maxim Group LLC, dated October 9, 2026
(incorporated by reference to Exhibit 10.6 to the Current Report on Form 8-K filed on October
13, 2026)
10.7
ATM
Payment Direction Letter between Co-Diagnostics, Inc. and Maxim Group LLC, dated October 9, 2026
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
CO-DIAGNOSTICS,
INC.
October
15, 2026
By:
/s/
Dwight H. Egan
Name:
Dwight
H. Egan
Title:
Chief
Executive Officer

----- ex10-4.htm -----
EX-10.4
2
ex10-4.htm
EX-10.4
Exhibit
10.4
THIS
ATM WATERFALL DISTRIBUTION AGREEMENT (“
Agreement
”) is made and entered into as of October 9, 2026 by and among
Co-Diagnostics,
Inc.
, a Utah corporation (the
“Compan
y”) and
J.J. Astor & Co.
, a Utah corporation (“Astor”
or
the “L
ender”). The Company and the Lender are hereinafter sometimes individually referred to as a “
Party
”
and collectively as the “Parties.”
R
E C I T A L S:
WHEREAS,
the Company and the Lender have entered into a loan agreement dated as of October 9, 2026 (the “Loan Agreement”). Any capitalized
terms used but not defined in this Agreement shall have the meanings
ascribed thereto
in the Loan Agreement;
WHEREAS
,
the Company wishes to borrow up to Three Million One Hundred Thousand ($3,100,000) Dollars in two tranches, consisting of Two Million
One Hundred Thousand ($2,100,000) Dollars (the “
Initial Loan
”) and, commencing sixty (60) days after the Agreement
Date, an additional One Million ($1,000,000) Dollars (the “
Additional Loan
” and together with the Initial Loan, the
“
Loans
”) which the Company may elect to borrow and, absent a Material Adverse Effect or an Event of Default, the Lender
shall fund;
WHEREAS,
pursuant to the Loan Agreement, (a) the Company shall issue to the Lender the Two Million Eight Hundred Thirty-Five Thousand Dollars
($2,835,000) Original Issue Amount senior secured installment promissory note in the form of
Exhibit A-1
to the Loan Agreement
(the “
Initial Note
”) and (b) if the Company wishes to receive the net proceeds of the Additional Loan, it shall issue
to the Lender the One Million Three Hundred Fifty Thousand Dollars ($1,350,000), Original Issue Amount senior secured installment promissory
note in the form of
Exhibit A-2
to the Loan Agreement reflecting a factor rate of 1.35 times the amount of the Additional
Loan (the “
Additional Note
”);
WHEREAS,
Maxim Group LLC (the “ATM Sales Agent”) will arrange, as underwriter, placement agent or deal manager, for an at the market
financing of approximately $7,350,877.68 in respect of sales
of Common Sto
ck for the Company (the “ATM Financing”);
WHEREAS,
the ATM Financing was established under a prospectus filed with the SEC on July 27, 2026 pursuant to Form S-3 (File No. 333-295803) registering
for sale approximately $7,901,383.00 of Common Stock (the “
ATM Offering Capacity
”);
WHEREAS,
as of October 7, 2026, the Company has approximately $7,350,877.68 in remaining ATM Offering Capacity (the “
Available ATM Capacity
”).
During the term of the Loans, the Company covenants and agrees that the ATM Financing will not be suspended or terminated.
WHEREAS,
the Parties to this Agreement hereby mutually agree that the Company shall direct the appropriate Parties to notify the Lender within
two (2) Business Days following each sale of shares of Common Stock or Common Stock Equivalents sold in the ATM Financing of such number
of shares of Common Stock or Common Stock Equivalents sold in the ATM Financing and the net proceeds received or receivable for the Company
from such sale; such notices (the “
Payment Notices
”) shall be delivered by electronic mail to
jarom.h@jjastor.com
and
michael.p@jjastor.com
.
1
WHEREAS,
the Company hereby irrevocably agrees to direct appropriate Parties to cause one hundred percent (100%) of all ATM
Net Proceeds
(as defined in Section 3 below) to be remitted directly to the DACA Account maintained by the Company at East West Bank (the “Bank”).
The Company will cause the appropriate Parties to facilitate this direction of ATM Net Proceeds pursuant to a blocked deposit account
control agreement (the “
DACA
”) which shall be substantially in the form attached as Exhibit I to the Loan Agreement
and shall otherwise be acceptable in all respects to the Lender, and which shall be entered into on or before October 15, 2026 in accordance
with Section 2.04(b) of the Loan Agreement. Until the DACA has been executed and delivered, the ATM Net Proceeds shall be remitted to
the Interim Account as provided in Section 3 below. Pursuant to the DACA, the Lender shall distribute the funds in the DACA Account in
accordance with the ATM Waterfall Distribution set forth in Section 3 below.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements of the Parties contained herein it is hereby mutually agreed as follows:
1.
Definitions
.
This Agreement is the ATM Waterfall Distribution Agreement referred to in the Loan Agreement.
Unless otherwise defined in this Agreement, all capitalized terms when used herein shall
have the same meaning as they are defined in the Loan Agreement and the Notes. The Company
has furnished to ATM Sales Agent a true copy of the Loan Agreement and Exhibits thereto,
including the Notes and the ATM Waterfall Distribution Agreement.
2.
Incorporation
by Reference
. All of the statements set forth in the above Recitals are deemed to be
representations and agreements of the relevant Party or Parties and are incorporated by this
reference into the body of this Agreement.
3.
Payments
to Lender
.
This
Agreement is irrevocable and shall continue in full force and effect until the entire Outstanding Principal Amount of the Notes (including
any Default Amount and interest thereon) shall have been paid in full. One hundred percent (100%) of the proceeds of each ATM Financing,
after deduction only of the ATM Sales Agent’s sales commissions (the “
ATM Net Proceeds
”), shall be remitted
by the ATM Sales Agent within three (3) Business Days after the settlement date of the applicable sale directly to the deposit account
maintained by the Company at East West Bank and subject to the DACA (the “
DACA Account
”), pursuant to which Astor
shall have exclusive control of the DACA Account, and the ATM Net Proceeds deposited in the DACA Account shall be applied by the Lender
to the Weekly Installment Payments and the other amounts due under the Notes, with the balance released to the Company, as follows (the
“
ATM Waterfall Distributions
”):
(i)
the initial $1,000,000 of all ATM Net Proceeds shall be paid to Astor;
(ii)
Eighty Percent (80%) of all ATM Net Proceeds shall be remitted from the DACA Account and paid to the Lender and applied to the Notes,
and the remaining Twenty Percent (20%) of such ATM Net Proceeds shall be remitted by the Lender from the DACA Account to the Company
in accordance with clause (vi) below, in each case until the applicable minimum weekly installment payments (the “
Weekly Installment
Payments
”) that are due and payable under the Notes have been fully paid and satisfied for the relevant week;
(iii)
Thereafter, for the remainder of such week, Twenty-Five Percent (25%) of all ATM Net Proceeds shall be remitted from the DACA Account
and paid to the Lender and applied to the Notes, and the remaining Seventy-Five Percent (75%) of such ATM Net Proceeds shall be remitted
from the DACA Account to the Company in accordance with clause (vi) below, with the allocation set forth in clause (ii) applying again
at the start of each following week, in each case until the Notes are paid in full;
2
(iv)
Upon the occurrence of an Event of Default, eighty percent (80%) of all ATM Net Proceeds shall be remitted from the DACA Account to the
Lender and applied to all of the Obligations under the Notes (including any Default Amounts), and the remaining twenty percent (20%)
of such ATM Net Proceeds shall be remitted from the DACA Account to the Company in accordance with clause (vi) below, in each case until
the Obligations and Indebtedness under the Notes (including any applicable Default Amount) shall have been paid in full, and clauses
(ii) and (iii) shall not apply during such period, and such allocation may not be rescinded, modified, or suspended without the prior
written consent of Astor (acting on behalf of the Lender) notifying the Company and the ATM Sales Agent that the Notes (including any
applicable Default Amount) have been paid in full or that such Event of Default has been cured to the satisfaction of the Lender;
(v)
Notwithstanding the foregoing, in no event shall the amounts remitted to the Lender under clause (ii) exceed the amounts then outstanding
under the Notes, and the Company agrees to utilize the ATM Financing as required to, at minimum, make all required Weekly Installment
Payments;
(vi)
All ATM Net Proceeds deposited in the DACA Account in excess of the amounts remitted to the Lender pursuant to clauses (i) through (iv)
above (the “
Excess ATM Proceeds
”) shall be released and remitted by Astor (acting on behalf of the Lender) to such
operating account of the Company as the Company designates in writing, promptly and in any event within seven (7) Business Days after
such ATM Net Proceeds are deposited in the DACA Account, and, except as provided in the following proviso, Astor (acting on behalf of
the Lender) shall have no right to retain, withhold or apply any Excess ATM Proceeds; provided, however, that if at any time the aggregate
market value of the registered, freely tradeable shares available for sale by the ATM Sales Agent under the ATM Financing (based on the
closing price of the Common Stock on the immediately preceding Trading Day) is less than, or after giving effect to any remittance to
the Company would be less than, Two Hundred Percent (200%) of the Outstanding Principal Amount of the Notes (the “
ATM Coverage
Requirement
,” as set forth in Section 4.01(c)(x) of the Loan Agreement), then, notwithstanding anything to the contrary in
clauses (i) through (v) or this clause (vi), (A) the ATM Sales Agent or Astor (acting on behalf of the Lender) shall remit to the Company
only such portion, if any, of the ATM Net Proceeds otherwise remittable to the Company as will permit the ATM Coverage Requirement to
be satisfied after giving effect to the application of the balance of such ATM Net Proceeds to reduce or repay the Outstanding Principal
Amount of the Notes, and the Lender shall retain and apply such balance to the Notes, and (B) neither the ATM Sales Agent nor Astor (acting
on behalf of the Lender) shall have any obligation to remit or distribute any ATM Net Proceeds (including any Excess ATM Proceeds) to
the Company for so long as the ATM Coverage Requirement is not satisfied; and
(vii)
The ATM Waterfall Distribution Agreement shall remain in full force and effect until all Indebtedness and Obligations under the Notes
shall have been paid in full, including any Default Amounts.
Prior
to the execution and delivery of the DACA, all references in this Agreement to the DACA Account shall be deemed to refer to the account
designated by the Lender in writing pursuant to Section 2.04(b) of the Loan Agreement (the “Interim Account”), and the ATM
Waterfall Distributions (including the release of Excess ATM Proceeds to the Company under clause (vi)) shall apply to all ATM Net Proceeds
deposited in such account. If the Company receives any ATM Net Proceeds (whether by mistake or otherwise), the Company shall hold such
ATM Net Proceeds in trust for the Lender and shall turn them over to the DACA Account (or, prior to the execution and delivery of the
DACA, the Interim Account) within one (1) Business Day after receipt.
3
4.
DACA
.
All ATM Net Proceeds shall be directed to the DACA Account (or, prior to the execution and
delivery of the DACA, the Interim Account), which shall be subject to the DACA in form and
substance acceptable in all respects to the Lender. The Lender shall receive funds in the
DACA Account according to the ATM Waterfall Distribution set forth in Section 3 above.
5.
Maintenance
of Minimum ATM Shares
. The Company shall at all times maintain a sufficient number of
registered, freely tradeable shares of Common Stock or Common Stock Equivalents available
for sale under the ATM Financing (the “
Minimum ATM Shares
”) in an amount
equal to not less than Two Hundred Percent (200%) of the Outstanding Principal Amount of
the Notes and the Company shall promptly take all actions necessary to maintain such share
availability at all times. If the Company shall violate this covenant or another Event of
Default under the Notes or Loan Agreement shall have occurred, eighty percent (80%) of the
ATM Net Proceeds of the Minimum ATM Shares shall be paid to the Lender until the Notes (including
any applicable Default Amount) have been paid in full. For so long as the Minimum ATM Shares
requirement is not satisfied, remittances of ATM Net Proceeds to the Company shall be limited
as provided in Section 3(vi), and the Lender shall have no obligation to distribute any ATM
Net Proceeds to the Company.
6.
Required
Consents
. This Agreement is irrevocable and unconditional and cannot and shall not be
changed, modified or amended without the prior written consent of the Lender. In addition,
the Company acknowledges and agrees not to revoke, change, modify or amend the payment arrangements
in the Agreement without the prior written consent of the Lender. In addition, the Company
agrees not to attempt to revoke, change, modify or amend the DACA without the prior written
consent of the Lender.
7.
Binding
Agreement
. The Company covenants and agrees that it has approved this Agreement in all
respects and acknowledges that the Lender would not make the Loans if this Agreement had
not been executed by the Parties and does not remain in full force and effect. This Agreement
is binding upon the Company, and enforceable in accordance with its terms.
8.
Irrevocable
Payment Direction
. By its execution of this Agreement, the Company hereby irrevocably
covenants and agrees that, from and after the Closing Date, all ATM Net Proceeds from the
sale of Common Stock in the ATM Financing shall be paid and remitted solely to the DACA Account
(or, prior to the execution and delivery of the DACA, the Interim Account) within three (3)
Business Days after the settlement date of the applicable sale, until such time as all Indebtedness
and Obligations to the Lender under the Notes (including any applicable Default Amount) shall
have been paid in full. Without limiting the foregoing, pursuant to a separate payment direction
letter with the Company, the ATM Sales Agent shall wire all ATM Net Proceeds within three
(3) Business Days after the settlement date of the applicable sale solely to the DACA Account
(or, prior to the execution and delivery of the DACA, the Interim Account).
4
9.
Authorization
.
Each of the Parties has the requisite power and authority to enter into and to consummate
the transactions contemplated by this Agreement, and otherwise to carry out its obligations
hereunder. The execution and delivery of this Agreement by the Parties and the consummation
by each of them of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of the respective Parties. This Agreement has been duly executed
and delivered by the respective Parties and constitutes the valid and binding obligation
of the respective Parties enforceable against them in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally the enforcement
of, creditors’ rights and remedies or by other equitable principles of general application.
10.
Miscellaneous.
(a)
In
the event that the Company amends, restates or otherwise modifies the ATM Financing with
the Lender’s consent, this Agreement shall continue to be applied to such amended,
restated or modified ATM Financing.
(b)
This
Agreement shall be binding upon the successors and assigns of the Parties and shall inure
to the benefit of the Lender and their respective successors and assigns; provided that the
Company may not assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Lender.
(c)
This
Agreement may be executed by one or more of the Parties to this Agreement on any number of
separate counterparts (including by facsimile, .pdf or other electronic signature), and all
said counterparts taken together shall be deemed to constitute one and the same instrument.
(d)
Any
provision of this Agreement 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.
(e)
All
questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed by and construed and enforced in accordance with the internal laws of the
State of Utah, without regard to the principles of conflict of laws thereof. The Parties
agree that all legal proceedings concerning the interpretation, enforcement and defense of
the transactions contemplated by this Agreement (whether brought against a party hereto or
its respective Affiliates, directors, officers, shareholders, employees or agents) shall
be commenced exclusively in the federal and state courts sitting in the County of Salt Lake,
Utah (the “
Utah Courts
”). Each Party hereby irrevocably submits to the
exclusive jurisdiction of the Utah Courts for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of this Agreement), and hereby irrevocably waives,
and agrees not to assert in any suit, Action or Proceeding, any claim that it is not personally
subject to the jurisdiction of such Utah Courts, or such Utah Courts are improper or inconvenient
venue for such proceeding. Each Party hereby irrevocably waives personal service of process
and consents to process being served in any such suit, Action or Proceeding by mailing a
copy thereof via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve process in
any other manner permitted by applicable law.
5
(f)
Each
Party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law,
any and all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby. If any party shall commence an Action
or Proceeding to enforce any provisions of this Agreement, then the prevailing party in such
Action or Proceeding shall be reimbursed by the other party for its attorney’s fees
and other costs and expenses incurred in the investigation, preparation and prosecution of
such Action or Proceeding.
(g)
Any
notice, request, instruction or other document to be given hereunder by any party to the
others shall be in writing and delivered personally or sent by registered or certified mail,
postage prepaid, or by email:
If
to the Lender
J.J.
Astor & Co.
26
S Rio Grande Street, #2072
Salt
Lake City, Utah 84101
Attn:
Michael Pope, CEO
Email:
michael.p@jjastor.com
If
to the Company:
Co-Diagnostics,
Inc.
2401
S. Foothill Drive, Suite D
Salt
Lake City, Utah 84109
Attn:
Dwight H. Egan, CEO
Email:
d.egan@codiagnostics.com
Attn:
Daniel Bohrer, Executive VP of Finance and Accounting
Email:
d.bohrer@codiagnostics.com
Signature
page follows
6
IN
WITNESS WHEREOF, each of the Parties has executed this Agreement the date and year first above written.
CO-DIAGNOSTICS,
INC.
By:
/s/
Dwight H. Egan
Name:
Dwight
H. Egan
Title:
Chief
Executive Officer
By:
/s/
Daniel Bohrer
Name:
Daniel
Bohrer
Title:
Executive
Vice President of Finance and Accounting (Principal Financial Officer)
J.J.
ASTOR & CO.
By:
/s/
Michael Pope
Name:
Michael
Pope
Title:
Chief
Executive Officer
7

----- ex10-7.htm -----
EX-10.7
3
ex10-7.htm
EX-10.7
Exhibit
10.7
ATM
Payment direction letter
This
ATM PAYMENT DIRECTION LETTER (this “Agreement”) is entered into as of October 9, 2026, between Co-Diagnostics, Inc. (the
“Company”), and Maxim Group LLC (“Maxim”). Capitalized terms used but not otherwise defined in this Agreement
shall have the meanings ascribed to such terms in the Equity Distribution Agreement entered into on October 20, 2025 by and between the
Company and Maxim, as further amended (the “ATM”). Other capitalized terms used herein shall have the meanings as they are
defined in the Deposit Account Control Agreement dated as of October 9, 2026, among the Company, J.J. Astor & Co. and East West Bank
(the “DACA”).
Background
The
Company has issued notes to J.J. Astor & Co. (the “Lender”), pursuant to which all ATM Net Proceeds shall be directed
to the DACA Account as set forth herein.
Agreement
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, and intending to be legally bound hereby, the Company and Maxim hereby agree as follows:
1.
ATM Net Proceeds
. The Company hereby irrevocably and unconditionally directs Maxim to pay all net proceeds from the ATM, after
deducting Maxim’s sales commissions and any other ATM expenses (“ATM Net Proceeds”), to the DACA Account at East West
Bank identified on Schedule A, maintained by the Company and subject to the DACA. Maxim shall pay all ATM Net Proceeds to such account
unless and until the Company notifies Maxim in writing that the DACA has been terminated.
2.
Maxim Obligations
. Maxim shall remit all ATM Net Proceeds to the DACA Account within three (3) business days following its receipt
of ATM proceeds. Maxim, by agreeing to deposit ATM Net Proceeds in the DACA Account listed on Schedule A, is only doing so at the direction
of the Company pursuant to Section 1 and assumes no further obligations associated with the underlying transactions the Company has entered
into in connection with the DACA.
3.
Construction; Venue
. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable
to agreements made and to be fully performed therein. Any disputes that arise under this Agreement will be heard only in the state or
federal courts located in the City of New York, State of New York. The parties hereto expressly agree to submit themselves to the jurisdiction
of the foregoing courts in the City of New York, State of New York. The parties hereto expressly waive any rights they may have to contest
the jurisdiction, venue or authority of any court sitting in the City and State of New York. In the event of the bringing of any action,
or suit by a party hereto against the other party hereto, arising out of or relating to this Agreement, the party in whose favor the
final judgment or award shall be entered shall be entitled to have and recover from the other party the costs and expenses incurred in
connection therewith, including its reasonable attorneys’ fees. Any rights to trial by jury with respect to any such action, proceeding
or suit are hereby waived by Maxim and the Company.
4.
Counterparts
. This Agreement may be executed in any number of counterparts, including facsimile signatures, which shall be deemed
as original signatures. All executed counterparts shall constitute one agreement, notwithstanding that all signatories are not signatories
to the original or the same counterpart.
IN
WITNESS WHEREOF, the undersigned has caused this Agreement to be executed by its officer thereunto duly authorized as of the date first
above indicated.
COMPANY
CO-DIAGNOSTICS,
INC.
By:
/s/
Dwight H. Egan
Name:
Dwight
H. Egan
Title:
Chief
Executive Officer
MAXIM
MAXIM
GROUP LLC
By:
/s/
Ritesh M. Veera
Name:
Ritesh
M. Veera
Title:
Co-Head,
Investment Banking