Form 8-K
8-K — My Size, Inc.
Accession: 0001493152-26-036211
Filed: 2026-08-05
Period: 2026-08-05
CIK: 0001211805
SIC: 7372 (SERVICES-PREPACKAGED SOFTWARE)
Item: Entry into a Material Definitive Agreement
Item: Unregistered Sales of Equity Securities
Item: Financial Statements and Exhibits
Documents
8-K — form8-k.htm (Primary)
EX-10.1 (ex10-1.htm)
EX-10.2 (ex10-2.htm)
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8-K
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): August 5, 2026
MY
SIZE, INC.
(Exact
name of registrant as specified in its charter)
Delaware
001-37370
51-0394637
(State
or other jurisdiction
of
incorporation)
(Commission
File
Number)
(IRS
Employer
Identification
No.)
HaNegev
4, POB 1026
Airport
City, Israel 7010000
(Address
of principal executive offices and Zip Code)
Registrant’s
telephone number, including area code +972-3-600-9030
N/A
(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
MYSZ
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. ☐
Item
1.01 Entry into a Material Definitive Agreement.
On
August 5, 2026 (the “Execution Date”), My Size, Inc. (the “Company,” “we,” “us” or “our”),
entered into an Equity Purchase Agreement (the “Equity Purchase Agreement”) with Square Gate Capital Master Fund, LLC - Series
5 (the “Investor”), pursuant to which the Company will have the right, but not the obligation, to sell to the Investor, and
the Investor will have the obligation to purchase from the Company, up to $10,000,000 (the “Maximum Commitment Amount”) worth
of the Company’s shares of common stock, at the Company’s sole discretion, over the next 36 months (the “Put Shares”),
subject to certain conditions precedent and other limitations.
Unless
earlier terminated, the Equity Purchase Agreement will remain in effect until the earlier of August 5, 2029 (i.e., the expiry
of the 36-month period commencing on the Execution Date) or the date on which the Investor has purchased the Maximum
Commitment Amount (the “Commitment Period”). The Company has the right to terminate the Equity Purchase Agreement at any
time, subject to certain provisions as set forth in the Equity Purchase Agreement. The Investor has the right to terminate the Equity
Purchase Agreement under certain provisions as set forth in the Equity Purchase Agreement, including the continued listing of the Company’s
common stock on an Eligible Market (as defined in the Equity Purchase Agreement).
During
the Commitment Period, the Company will have the right, but not the obligation, to direct the Investor to make a purchase of the Put
Shares by delivering written notice to the Investor (a “Put Notice”) on any trading day (the “Put Date”) to purchase
a number of Put Shares pursuant to a formula set forth in the Equity Purchase Agreement. The number of Put Shares that the Company can
issue to the Investor from time to time under the Equity Purchase Agreement may not exceed 4.99% of the number of shares of the Company’s common
stock outstanding immediately after giving effect to the issuance of shares issuable pursuant to a Put Notice. Put Notices mean either
a Regular Put Notice or an Intraday Put Notice (each as defined in the Equity Purchase Agreement).
Notwithstanding
anything to the contrary in the Equity Purchase Agreement, the Company may not effect, and Investor will not be obligated to make,
any sales under the Equity Purchase Agreement to the extent that the aggregate number of shares issued under the Equity Purchase
Agreement would exceed 1,024,597 shares (representing 19.99% of the aggregate number of shares of common stock issued and
outstanding as of the Execution Date) (the “Exchange Cap”). The Exchange Cap will not apply if (a) the Company’s
stockholders approve the issuance of shares of common stock pursuant to the Equity Purchase Agreement in excess of the Exchange Cap
in accordance with the rules of the Nasdaq Stock Market, or (b) the Average Price (as defined below) of all applicable sales of
shares hereunder (including any sales covered by a Regular Put Notice or Intraday Put Notice that has been delivered prior to the
determination) equals or exceeds $0.3706 per share (which represents the lower of (i) the Nasdaq Official Closing Price immediately
preceding the Execution Date and (ii) the average Nasdaq Official Closing Price for the five Trading Days immediately preceding the
Execution Date). The “Average Price” is calculated by dividing the aggregate gross purchase price paid by Investor for
all shares purchased under the Equity Purchase Agreement by the aggregate number of shares issued thereunder; for this calculation,
the purchase price for each Commitment Share is deemed to be $0.00. As a result, if the market price of our common stock declines
such that the Average Price falls below $0.3706 per share, we would be limited to issuing only 1,024,597 shares under the Equity
Purchase Agreement unless we obtain stockholder approval.
The
per share purchase price for the Put Shares that the Company elects to sell to the Investor in a Regular Put Notice will be equal to
96.5% of the lowest daily volume-weighted average price (“VWAP”) during the Regular Valuation Period (as defined in the Equity
Purchase Agreement). The per share purchase price for the Put Shares that we elect to sell to the Investor in an Intraday Put Notice
will be equal to 100% of the lowest traded price during the Intraday Valuation Period (as defined in the Equity Purchase Agreement).
The
Company also agreed to pay a $100,000 commitment fee (the “Commitment Fee”), which was paid in the form of 269,229
shares of common stock (“Commitment Shares”) issued to the Investor in accordance with the terms of the Equity Purchase
Agreement.
Upon the earlier of (i) the Commitment Shares becoming eligible for resale
under Rule 144 or (ii) the effectiveness of the registration statement covering the resale of the Commitment Shares, if the True-Up Commitment
Share Reference Price (as defined in the Equity Purchase Agreement) is less than the Initial Commitment Share Reference Price (as defined
in the Equity Purchase Agreement), the Company will immediately issue additional True-Up Commitment Shares (as defined in the Equity Purchase
Agreement), for no additional cash consideration, so that the aggregate number of Commitment Shares equals $100,000 divided by the True-Up
Commitment Share Reference Price. The True-Up Commitment Share Reference Price is generally based on the closing price of the common stock
on or around the date on which the Registration Statement (as defined below) is declared effective by the Securities and Exchange Commission
(“SEC”) or the date on which the initial Commitment Shares become Rule 144 eligible, whichever occurs first, as more fully
described in the Equity Purchase Agreement. The Commitment Fee and Commitment Shares are fully earned as of the Execution Date and are
not contingent upon any other event or condition, including the effectiveness of the registration statement or our submission of a Put
Notice.
Unless waived by Investor, the Company has agreed not to issue any shares
of common stock or other securities convertible into or exercisable or exchangeable for shares of common stock, or enter into any agreement
to do so, (a) for a period of 10 Trading Days following the date the Registration Statement is declared effective by the SEC, and (b)
during each Standstill Period (as defined in the Equity Purchase Agreement), which generally begins upon the submission of a Put Notice
that has been accepted and ends upon the later of (1) the Trading Day following the expiration of the applicable Valuation Period and
(2) the close of the trading day on which the aggregate trading volume of the common stock since issuance of such Put Notice exceeds 400%
of the number of Put Shares sold pursuant to such Put Notice (the “Standstill”). The provisions of this Standstill restriction
do not apply to sales of securities in an “at-the-market” offering, except during the period from the time when the Regular
Valuation Period expires until the time specified in clause (b)(2) above. These restrictions may limit our ability to raise additional
capital through equity financings during the term of the Equity Purchase Agreement.
During the Standstill, we
are also prohibited from entering into variable rate transactions, as defined in the Equity Purchase Agreement, subject to certain
customary exceptions. In addition, so long as the Equity Purchase Agreement remains in effect, we have agreed not to enter into any
other equity line of credit agreement with any other party without Investor’s prior written consent. The Investor has
covenanted not to cause or engage in any short sales or hedging transactions with respect to the shares of the Company’s
common stock.
On August 5, 2026, the
Company also entered into a registration rights agreement (the “Registration Rights Agreement”) with the Investor,
pursuant to which the Company agreed to submit to the SEC an initial registration statement on Form S-1 (the “Registration
Statement”) by the 30th calendar day after the date of the Registration Rights Agreement, covering the resale of
the Commitment Shares, which may have been, or which may from time to time be, issued under the Equity Purchase Agreement for public
resale, and to use commercially reasonable efforts to cause the Registration Statement to be declared effective by the SEC.
The
Equity Purchase Agreement and Registration Rights Agreement contain customary representations, warranties and agreements by the Company
and customary conditions to the Investor’s obligation to purchase the Put Shares. Actual sales of shares of our common stock, if
any, to the Investor under the Equity Purchase Agreement will depend on a variety of factors to be determined by the Company from time
to time, including, among others, market conditions, the trading price of the Company’s common stock and determinations by the
Company as to the appropriate sources of funding for the Company and its operations. The net proceeds to us from sales of our common
stock to the Investor under the Equity Purchase Agreement, if any, will depend on the frequency and prices at which the Company sells
shares to the Investor under the Equity Purchase Agreement. Any proceeds that the Company receives from sales of shares of our common
stock to the Investor under the Equity Purchase Agreement will be used for working capital and general corporate purposes.
This Current Report on Form
8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of securities
in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or other jurisdiction.
The foregoing descriptions of the Equity Purchase Agreement and the Registration
Rights Agreement are summaries of the material terms of each such agreement, do not purport to be complete, and are qualified in their
entirety by references to the full texts of the Equity Purchase Agreement and Registration Rights Agreement, which are filed as Exhibit
10.1 and Exhibit 10.2, respectively, and are incorporated herein by reference.
Item 3.02. Unregistered
Sales of Equity Securities.
The matters described in
Item 1.01 of this Current Report on Form 8-K with respect to the issuance of Commitment Shares under the Equity Purchase Agreement are
incorporated herein by reference.
In the Equity Purchase Agreement,
Investor represented to the Company, among other things, that it is an “accredited investor” (as such term is defined in
Rule 501(a)(3) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”)). The securities referred
to in this current report on Form 8-K are being issued and sold by the Company to Investor in reliance upon the exemptions from the registration
requirements of the Securities Act afforded by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D promulgated thereunder.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Exhibit
No.
Description
10.1
Form of Equity Purchase Agreement, dated August 5, 2026, between the Company and Square Gate Master Fund, LLC - Series 5.
10.2
Form of Registration Rights Agreement, dated August 5, 2026, between the Company and Square Gate Master Fund, LLC - Series 5.
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.
MY
SIZE, INC.
Date:
August 5, 2026
By:
/s/
Ronen Luzon
Name:
Ronen
Luzon
Title:
Chief
Executive Officer
EX-10.1
EX-10.1
Filename: ex10-1.htm · Sequence: 2
Exhibit
10.1
EQUITY
PURCHASE AGREEMENT
THIS
EQUITY PURCHASE AGREEMENT (this “Agreement”) is entered into as of August 5, 2026 (the “Execution Date”),
by and between My Size, Inc., a corporation incorporated in the State of Delaware (the “Company”), and Square Gate
Capital Master Fund, LLC – Series 5, a series limited liability company organized in the State of Delaware (the “Investor”).
RECITALS
WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to the Investor,
from time to time as provided herein, and the Investor shall purchase from the Company up to Ten Million Dollars ($10,000,000.00) of
the Company’s Common Stock (as defined below);
NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
ARTICLE
I
CERTAIN DEFINITIONS
Section
1.1 RECITALS. The parties acknowledge and agree that the recitals set forth above are true and correct and are hereby incorporated
in and made a part of this Agreement.
Section
1.2 DEFINED TERMS. As used in this Agreement, the following terms shall have the following meanings specified or indicated (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
“Affiliate”
shall have the meaning set forth in Section 3.5.
“Agreement”
shall have the meaning specified in the preamble hereof.
“Available
Amount” means, initially, the Maximum Commitment Amount, which amount shall be reduced by the Investment Amount following each
successful Closing, each time the Investor purchases Put Shares.
“Average
Daily Trading Volume” shall mean the average trading volume of the Common Stock on the applicable Trading Days.
“Average
Price” means a price per share equal to the quotient obtained by dividing (i) the aggregate gross purchase price paid by the
Investor for all Put Shares purchased pursuant to this Agreement, by (ii) the aggregate number of Securities issued pursuant to this
Agreement; provided that for this purpose the purchase gross price paid by the Investor for each Commitment Share shall be deemed to
be $0.00.
“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of
debtors.
“Claim
Notice” shall have the meaning specified in Section 9.3(a).
-1-
“Clearing
Costs” shall mean all of the Investor’s broker, and Transfer Agent fees and trading commissions, which shall not exceed
$0.01 per share.
“Clearing
Date” shall be the date on which the Investor receives the Put Shares as DWAC Shares in its brokerage account.
“Closing”
shall mean one of the closings of a purchase and sale of Common Stock pursuant to Section 2.4.
“Closing
Certificate” shall mean the closing “Officer’s Certificate” of the Company in the form of Exhibit C hereto.
“Closing
Date” shall mean the date of any Closing hereunder.
“Commitment
Period” shall mean the period commencing on the Execution Date, and ending on the earlier of (i) the date on which the Investor
shall have purchased Put Shares pursuant to this Agreement equal to the Maximum Commitment Amount, (ii) August 5, 2029, (ii) provided
that the Registration Statement shall have been previously declared effective by the SEC, the written notice of termination by the Company
to the Investor (which shall not occur at any time that the Investor holds any of the Put Shares), or (iii) written notice of termination
by the Investor to the Company pursuant to Section 6.1 or Section 10.6.
“Commitment
Shares” means Common Stock issued by the Company to the Investor pursuant to Section 6.4 (including, for avoidance of
doubt, any True-Up Commitment Shares (as defined in such Section)).
“Common
Stock” means the common stock of the Company, having a par value per share of $0.001, and any shares of any other class of
common stock of the Company whether now or hereafter authorized, having the right to participate in the distribution of dividends (as
and when declared) and assets (upon liquidation of the Company).
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company”
shall have the meaning specified in the preamble to this Agreement.
“Confidential
Information” means any information disclosed by either party to this Agreement, or their Affiliates, agents or representatives,
to the other party to this Agreement, either directly or indirectly, in writing, orally or by inspection of tangible objects (including,
without limitation, documents, formulae, business information, trade secrets, technology, strategies. prototypes, samples, plant and
equipment), which may or may not be designated as “Confidential,” “Proprietary” or some similar designation.
Information communicated orally shall be considered Confidential Information. Confidential Information may also include information disclosed
by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally
available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally
available after disclosure by the disclosing party to the receiving party through no fault, action or inaction of the receiving party;
(iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving
party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party
without a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the
receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party
gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting
the information from public disclosure.
-2-
“Current
Report” shall have the meaning set forth in Section 6.3.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Damages”
shall mean any loss, claim, damage, liability, cost and expense (including, without limitation, reasonable attorneys’ fees and
disbursements and costs and expenses of expert witnesses and investigation).
“Dispute
Period” shall have the meaning specified in Section 9.3(a).
“Disqualification
Event” shall have the meaning specified in Section 4.27.
“DTC”
shall mean The Depository Trust Company, or any successor performing substantially the same function for the Company.
“DTC/FAST
Program” shall mean the DTC’s Fast Automated Securities Transfer Program.
“DWAC”
shall mean Deposit Withdrawal at Custodian as defined by the DTC.
“DWAC
Eligible” shall mean that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s operational arrangements,
including, without limitation, transfer through DTC’s DWAC system, (b) the Company has been approved (without revocation) by the
DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in the DTC/FAST Program, (d) the Commitment Shares
or Put Shares, as applicable, are otherwise eligible for delivery via DWAC, and (e) the Transfer Agent does not have a policy prohibiting
or limiting delivery of the Put Shares or Commitment Shares, as applicable, via DWAC.
“DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without
restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified DWAC account
with DTC under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same function.
“Eligible
Market” means the Principal Market or any nationally recognized exchange upon which the Common Stock is listed.
“Environmental
Laws” shall have the meaning set forth in Section 4.14.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange
Cap” shall have the meaning set forth in Section 6.13.
-3-
“Execution
Date” shall have the meaning set forth in the preamble to this Agreement.
“FINRA”
shall mean the Financial Industry Regulatory Authority, Inc.
“Indemnified
Party” shall have the meaning specified in Section 9.2.
“Indemnifying
Party” shall have the meaning specified in Section 9.2.
“Indemnity
Notice” shall have the meaning specified in Section 9.3(b).
“Intellectual
Property” shall mean all trademarks, trademark applications, trade names, service marks, service mark registrations, service
names, patents, patent applications, patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets
or other intellectual property rights.
“Intraday
Purchase Price” shall mean one hundred percent (100%) of the lowest traded price during the Intraday Valuation Period.
“Intraday
Put” shall mean the right of the Company to require the Investor to purchase Common Stock at the Intraday Purchase Price, subject
to the terms and conditions of this Agreement.
“Intraday
Put Notice” shall mean a written notice, substantially in the form of Exhibit B hereto, addressed to the Investor and
setting forth the amount of Put Shares which the Company requests the Investor to purchase in an Intraday Put (which shall not exceed
the Maximum Intraday Put Amount) pursuant to the terms of this Agreement.
“Intraday
Valuation Period” shall mean the period beginning at the time that is 15 minutes after the time (rounded up to the nearest
full minute) of the email confirmation from the Transfer Agent to the Investor’s broker that the Transfer Agent is processing for
issuance the Intraday Put Shares, with the Investor copied on such email (“Intraday Valuation Period Start Time”),
and ending at the later to occur of (i) expiration of 15 minutes after the Intraday Valuation Start Time and (ii) the time when the aggregate
trading volume during one or more Trading Days since the Intraday Valuation Period Start Time equals or exceeds one thousand percent
(1,000%) of the number of Put Shares purchased by the Investor pursuant to the relevant Intraday Put Notice, as the case may be, but
in no event later than the same time of day as the Intraday Valuation Start Time on the fifteenth (15th) Trading Day after
the Intraday Valuation Start Time.
“Investment
Amount” shall mean the dollar value equal to the amount of Put Shares referenced in the Put Notice multiplied by the Purchase
Price.
“Investor”
shall have the meaning specified in the preamble to this Agreement.
“Irrevocable
Transfer Agent Instruction Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent
to issue the Commitment Shares calculated under the True-Up Commitment Share Reference Price pursuant to the Transaction Documents, in
the form of Exhibit D attached hereto.
“Issuer
Covered Person” shall have the meaning specified in Section 4.27.
“Lien”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or any other restriction.
-4-
“Material
Adverse Effect” shall mean any effect on the business, operations, properties, or financial condition of the Company and/or
the Subsidiaries that is material and adverse to the Company and/or the Subsidiaries and/or any condition, circumstance, or situation
that would prohibit or otherwise materially interfere with the ability of the Company and/or the Subsidiaries to enter into and/or perform
its obligations under any Transaction Document and which shall be deemed to include any investigation of the Company, its directors or
its officers by the SEC.
“Maximum
Commitment Amount” shall mean up to Ten Million Dollars ($10,000,000.00).
“Maximum
Intraday Put Amount” shall mean 9.99% of the number of shares of Common Stock outstanding on the date of delivery of the applicable
Intraday Put Notice. The Maximum Intraday Put Amount may be waived by the Investor in its sole discretion.
“Maximum
Regular Put Amount” shall mean the lesser of (i) one hundred percent (100%) of the Average Daily Trading Volume over the five
(5) Trading Days preceding the applicable Put Date, (ii) thirty percent (30%) of the daily trading volume over the applicable Put Date,
and (iii) the quotient (rounded up or down to the nearest whole number) obtained by dividing (x) Five Hundred Thousand Dollars ($500,000)
by (y) the closing price on the applicable Put Date (in each case to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction during the applicable period). The Maximum Regular Put
Amount may be waived by the Investor in its sole discretion.
“Person”
shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Principal
Market” shall mean the Nasdaq Capital Market, provided however, that in the event the Common Stock are ever listed or traded
on the Nasdaq Global Select Market, the Nasdaq Global Market, the New York Stock Exchange, or the NYSE American, then the “Principal
Market” shall mean such other market or exchange on which the Common Stock are then listed or traded to the extent such other market
or exchange is the principal trading market or exchange for the Common Stock.
“Purchase
Price” shall mean either the Regular Purchase Price or the Intraday Purchase Price, as applicable.
“Put”
shall mean either a Regular Put or an Intraday Put.
“Put
Notice” shall mean either a Regular Put Notice or an Intraday Put Notice.
“Put
Date” shall mean any Trading Day during the Commitment Period that a Put Notice is deemed delivered pursuant to Section
2.1(c) or delivered pursuant to Section 2.2 (a).
“Put
Shares” shall mean all shares of Common Stock issued, or that the Company shall be entitled to issue, per any applicable Put
Notice in accordance with the terms and conditions of this Agreement.
“Registration
Rights Agreement” means that agreement in the form attached hereto as Exhibit E.
“Registration
Statement” shall have the meaning specified in Section 6.3.
“Regular
Purchase Price” shall mean ninety-eight percent (96.5%) of the lowest daily VWAP of the Common Stock on the Principal Market
during the Valuation Period.
-5-
“Regular
Put” shall mean the right of the Company to require the Investor to purchase Common Stock at the Regular Purchase Price, subject
to the terms and conditions of this Agreement.
“Regular
Put Notice” shall mean a written notice, substantially in the form of Exhibit A hereto, addressed to the Investor and
setting forth the amount of Put Shares which the Company intends to require the Investor to purchase in a Regular Put (which shall not
exceed the Maximum Regular Put Amount unless otherwise wagered by the Investor) pursuant to the terms of this Agreement.
“Regular
Valuation Period” shall mean the period of three (3) consecutive Trading Days immediately following the applicable Put Date
for a Regular Put.
“Regulation
D” shall mean Regulation D promulgated under the Securities Act.
“Rule
144” shall mean Rule 144 promulgated under the Securities Act or any similar provision then in force under the Securities Act.
“SEC”
or “Commission” shall mean the United States Securities and Exchange Commission.
“SEC
Documents” shall have the meaning specified in Section 4.5.
“Securities”
means, collectively, the Put Shares and the Commitment Shares.
“Securities
Act” shall mean the Securities Act of 1933, as amended.
“Share
Delivery Deadline” shall mean either the Regular Share Delivery Deadline or the Intraday Share Delivery Deadline.
“Short
Sales” shall mean all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act or any hedging
transaction that establishes a net short position with respect to the Common Stock.
“Subsidiary”
or “Subsidiaries” means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly,
owns a majority of the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of
Regulation S-K promulgated under the Securities Act.
“Third
Party Claim” shall have the meaning specified in Section 9.3(a).
“Trading
Day” means any full trading day (beginning at 9:30:01 a.m., New York City time, and ending at 4:00 p.m., New York City time)
on the Principal Market or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market.
“Transaction
Documents” shall mean this Agreement, the Registration Rights Agreement, the Transfer Agent Instruction Letter and all schedules
and exhibits hereto and thereto.
“Transfer
Agent” shall mean VStock Transfer, LLC, the current transfer agent of the Company, and any successor transfer agent of the
Company.
-6-
“Transfer
Agent Instruction Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent to issue
the Put Shares and the Commitment Shares pursuant to the Transaction Documents, in the form of Exhibit D attached hereto.
“Valuation
Period” shall mean either the Regular Valuation Period or the Intraday Valuation Period, as applicable.
“VWAP”
means, for the Common Stock as of any Trading Day, the dollar volume-weighted average price for the Common Stock on the Principal Market
(or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) during the period beginning at 9:30:01 a.m.,
New York City time, or such other time publicly announced by the Principal Market (or by such Eligible Market, as applicable) as the
official open (or commencement) of trading on the Principal Market (or on such Eligible Market, as applicable) on such Trading Day, and
ending at 4:00 p.m., New York City time, or such other time publicly announced by the Principal Market (or by such Eligible Market, as
applicable) as the official close of trading on the Principal Market (or on such Eligible Market, as applicable) on such Trading Day,
as reported by Bloomberg, L.P. (or, if not reported on Bloomberg, L.P., another reporting service reasonably agreed to by the parties).
All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other
similar transaction during such period.
ARTICLE
II
PURCHASE
AND SALE OF COMMON STOCK
Section
2.1 REGULAR PUTS. (a) Subject to the terms and conditions set forth herein (including, without limitation, the provisions of Article
VII), the Company shall have the right, but not the obligation, from time to time during the Commitment Period, to direct the Investor
to process a Regular Put by its delivery to the Investor of a Regular Put Notice to purchase Put Shares, provided that notwithstanding
any other terms of this Agreement, in each instance unless waived by the Investor in its sole discretion, (i) the Put Shares are not
more than the Maximum Regular Put Amount for any Regular Put, (ii) the aggregate Investment Amount of all Puts (including such Regular
Put) shall not exceed the Maximum Commitment Amount, (iii) at least one (1) Trading Day has lapsed since the most recent Regular Valuation
Period has ended, and (iv) all Put Shares resulting from prior submitted Put Notices for all Puts have been delivered.
(b)
At any time and from time to time during the Commitment Period, except as provided in this Agreement, the Company may cause a Regular
Put by delivering a Regular Put Notice to the Investor via email, subject to satisfaction of the conditions set forth in Section 2.1,
Section 7.1 and otherwise provided in this Agreement. The Company shall deliver, or cause to be delivered, the Put Shares as DWAC
Shares to the Investor as required pursuant to Section 2.4(a).
(c)
A Regular Put Notice shall be deemed delivered on a Trading Day if it is received by e-mail by the Investor if such notice is received
on or after 4:00 p.m. New York City time and prior to 6:30 p.m. New York City time on such Trading Day (“Regular Put Notice
Delivery Window”). If a Regular Put Notice is not received by the Investor during a Regular Put Notice Delivery Window, the
Investor in its sole discretion may choose to deem such Regular Put Notice to have been delivered on the Trading Day in which it was
received by notice to the Company no later than 8:00 p.m. New York City time on the Trading Day it was received. If (i) the Investor
does not provide notice of such acceptance, or (ii) unless waived by the Investor, if the closing price of the Common Stock on the Principal
Market (or on such Eligible Market, as applicable) on the Trading Day the Put Notice is received is less than $0.50 per share, the Regular
Put Notice will be deemed withdrawn.
-7-
Section
2.2 INTRADAY PUTS. (a) Notwithstanding anything in this Agreement to the contrary, after delivery of a Regular Put Notice (the
“Initial Put Notice”), the Company may submit one or more Intraday Put Notices by email to the Investor at any time
after the delivery of the Initial Put Notice, which notice shall state a number of additional Put Shares (“Intraday Put Shares”)
that the Company desires to sell to the Investor on that same Trading Day and request the Investor’s acceptance of an Intraday
Put to be executed and priced in accordance with this Section 2.2(a). Each Intraday Put Notice shall be subject to the Investor’s
written acceptance and the terms, and subject to the conditions that, notwithstanding any other terms of this Agreement, in each instance
unless waived by the Investor in its sole discretion, (i) the Intraday Put Shares are not more than the Maximum Intraday Put Amount for
any Intraday Put, (ii) the aggregate Investment Amount of all Puts (including such requested Intraday Put) shall not exceed the Maximum
Commitment Amount, and (iii) all Put Shares resulting from prior submitted Put Notices for all Puts have been delivered, as well as the
other conditions and limitations set forth in this Section 2.2 and the provisions of Section 7.1 (which terms, conditions and
limitations shall govern any Intraday Put in the event of a conflict with any other provisions of this Agreement).
(b)
The Investor shall use commercially reasonable efforts to provide its acceptance or rejection of an Intraday Put Notice by email to the
Company within thirty (30) minutes following the Investor’s receipt of such Intraday Put Notice. If the Company does not receive
acceptance or rejection from the Investor of an Intraday Put Notice within such 30-minute period, such Intraday Put Notice shall be deemed
rejected. For clarity, the Company may issue, and the Investor may accept, multiple Intraday Put Notices during a Trading Day.
(c)
The Purchase Price of the Put Shares purchased by the Investor pursuant to each Intraday Put Notice shall be the Intraday Purchase Price.
(d)
The Company shall deliver, or cause to be delivered, the Put Shares as DWAC Shares to the Investor as required pursuant to Section 2.4(a)(ii).
Section
2.3 CLOSINGS.
(a)
TIMING. (i) The Clearing Date of a Regular Put shall occur on the Trading Day following the delivery of the applicable Regular
Put Notice in accordance with Section 2.1(c). On the Clearing Date, the Company shall deliver, or cause to be delivered the applicable
Put Shares as DWAC shares to the Investor not later than 9:30 a.m. (New York City Time) (the “Regular Share Delivery Deadline”).
The Closing of a Regular Put shall occur two (2) Trading Days following the end of the Regular Valuation Period. In addition, on or prior
to any such Closing or on the date of the delivery of the applicable Regular Put Notice, as required pursuant to Section 7.1,
each of the Company and the Investor shall deliver to each other all documents, instruments and writings required to be delivered or
reasonably requested by either of them pursuant to this Agreement in order to implement and effect the transactions contemplated herein
(ii)
With respect to an Intraday Put accepted by the Investor pursuant to Section 2.2(b), the Company will deliver the relevant Transfer
Agent Instruction Letter as promptly as practicable following its receipt of the Investor’s unconditional acceptance of the relevant
Intraday Put Notice, with a copy to the Investor by email; the Company will use all commercially reasonable efforts to cause the Transfer
Agent to deliver email confirmation to the Investor’s broker, with the Investor copied on such email, that the Transfer Agent is
processing for issuance such Intraday Put Shares within one hour following its receipt of such acceptance, and the “Intraday
Share Delivery Deadline” shall be the time that is 120 minutes after the Investor’s receipt of confirmation from the
Transfer Agent that it has received the relevant Transfer Agent Instruction Letter, rounded up to the nearest full minute.
-8-
(iii)
In addition to any other rights available to the Investor, if the Company fails to cause the Transfer Agent to transmit the Put Shares
pursuant to a Put Notice before the applicable Share Delivery Deadline, the Investor may elect to deem such Put Notice rescinded.
(iv)
Payment of the Investment Amount minus the Clearing Costs related to any applicable Put Notice shall be made by the Investor by wire
transfer of immediately available funds to an account designated by the Company not later than two (2) Trading Days following the end
of the applicable Valuation Period, as may be adjusted for any credit of a Cover Price available to the Investor in accordance with Section
2.4(b).
(b)
Compensation for Failure to Timely Deliver PUT Shares. In addition to any other
rights available to the Investor, if the Company fails to cause the Transfer Agent to transmit the Put Shares pursuant to the applicable
Put Notice before the applicable Share Delivery Deadline, and if after such Share Delivery Deadline the Investor purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Investor of such Put Shares that
the Investor anticipated receiving from the Company in respect of such applicable Put Notice, then the Company shall, within two (2)
Trading Days after the Investor’s request, which such request shall be made within two (2) Trading Days following the Share Delivery
Deadline, either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage commissions,
if any) for the Common Stock so purchased (the “Cover Price”), at which point the Company’s obligation to deliver
such Put Shares shall terminate, (ii) promptly honor its obligation to deliver to the Investor such Put Shares as DWAC Shares and pay
cash to the Investor in an amount equal to the excess (if any) of the Cover Price over the total Investment Amount paid by the Investor
in connection with such applicable Put Notice, or (iii) be deemed to have accepted notice that such Cover Price shall be credited as
the Investment Amount to be paid in respect of one or more subsequent Put Notices, in the discretion of the Investor. The Investor shall
provide the Company with written notice indicating the amounts payable to the Investor in respect of the Cover Price and evidence of
the amount of such amounts payable. Nothing herein shall limit the Investor’s right to pursue a decree of specific performance
and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock in connection with a Put
Notice.
(c)
RETURN OF SURPLUS. If the value of the Put Shares delivered to the Investor causes the Company to exceed the Maximum Commitment
Amount, then the Investor shall return to the Company the surplus amount of Put Shares associated with such Put, and the Purchase Price
with respect to such Put shall be reduced by any Clearing Costs incurred related to the return of such Put Shares.
(d)
RESALES DURING VALUATION PERIOD. The parties acknowledge and agree that during any Regular Valuation Period or Intraday Valuation
Period, the Investor may contract for, or otherwise effect, the resale of the subject purchased Put Shares to third parties.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF INVESTOR
The
Investor represents and warrants to the Company that as of the Execution Date, each date a Put Notice is submitted and at each Closing
Date:
Section
3.1 INTENT. The Investor is acquiring the Shares for its own account, for investment purposes and not with a view towards, or
for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from the
registration requirements of the Securities Act; provided, however, that by making the representations herein, the Investor does not
agree, or make any representation or warranty, to hold any of the Shares for any minimum or other specific term and reserves the right
to dispose of the Shares at any time in accordance with, or pursuant to, a registration statement filed pursuant to the Registration
Rights Agreement or an applicable exemption under the Securities Act and in compliance with all applicable federal and state securities
laws. The Investor does not presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute
any of the Shares.
-9-
Section
3.2 NO LEGAL ADVICE FROM THE COMPANY. The Investor acknowledges that it has had the opportunity to review this Agreement and the
transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors. Except with respect to the representations,
warranties and covenants contained in this Agreement, the Investor is relying solely on such counsel and advisors and not on any statements
or representations of the Company or any of its representatives or agents for legal, tax or investment advice with respect to this investment,
the transactions contemplated by this Agreement or the securities laws of any jurisdiction.
Section
3.3 ACCREDITED INVESTOR. The Investor is an accredited investor as defined in Rule 501(a)(3) of Regulation D, and the Investor
has such experience in business and financial matters that it is capable of evaluating the merits and risks of an investment in the Securities.
The Investor acknowledges that an investment in the Securities is speculative and involves a high degree of risk.
Section
3.4 AUTHORITY. The Investor has the requisite power and authority to enter into and perform its obligations under this Agreement
and the other Transaction Documents and to consummate the transactions contemplated hereby and thereby. The execution and delivery of
this Agreement and the other Transaction Documents and the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action and no further consent or authorization of the Investor is required. Each Transaction Document
to which it is a party has been duly executed by the Investor, and when delivered by the Investor in accordance with the terms hereof,
will constitute the valid and binding obligation of the Investor enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general application.
Section
3.5 NOT AN AFFILIATE. To the Investor’s knowledge, the Investor is not an officer, director or “affiliate” (as
such term is defined in Rule 405 of the Securities Act) of the Company.
Section
3.6 ORGANIZATION AND STANDING. The Investor is an entity duly formed, validly existing and in good standing under the laws of
the jurisdiction of its formation with full right, limited liability company power and authority to enter into and to consummate the
transactions contemplated by this Agreement and the other Transaction Documents.
Section
3.7 ABSENCE OF CONFLICTS. The execution and delivery of this Agreement and the other Transaction Documents, and the consummation
of the transactions contemplated hereby and thereby and compliance with the requirements hereof and thereof, will not (a) violate any
law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Investor, (b) violate any provision of any indenture,
instrument or agreement to which the Investor is a party or is subject, or by which the Investor or any of its assets is bound, or conflict
with or constitute a material default thereunder, (c) result in the creation or imposition of any lien pursuant to the terms of any such
indenture, instrument or agreement, or constitute a breach of any fiduciary duty owed by the Investor to any third party, or (d) require
the approval of any third-party (that has not been obtained) pursuant to any material contract, instrument, agreement, relationship or
legal obligation to which the Investor is subject or to which any of its assets, operations or management may be subject.
-10-
Section
3.8 MANNER OF SALE. At no time was the Investor presented with or solicited by or through any leaflet, public promotional meeting,
television advertisement or any other form of general solicitation or advertisement regarding the Securities.
Section
3.9 MARKET ACTIVITIES. Neither the Investor, nor any of its respective officers, directors or controlling persons will, directly
or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute
or result, in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of shares
of Common Stock or (ii) sell, bid for, or purchase shares of Common Stock in violation of Regulation M, or pay anyone any compensation
for soliciting purchases of the shares of Common Stock.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
The
Company represents and warrants to the Investor that, except as set forth in the disclosure schedules hereto that as of the Execution
Date, each date a Put Notice is submitted and at each Closing Date:
Section
4.1 ORGANIZATION OF THE COMPANY. The Company is a corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware, with the requisite power and authority to own and use its properties and assets and to carry on its business
as currently conducted. Each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to own and use
its properties and assets and to carry on its business as currently conducted. Each of the Company and the Subsidiaries is not in violation
or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter
documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result
in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or qualification.
Section
4.2 AUTHORITY. The Company has the requisite corporate power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents. The execution and delivery of this Agreement and the other Transaction Documents by the
Company and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate
action and no further consent or authorization of the Company or its board of directors or stockholders is required. Each of this Agreement
and the other Transaction Documents has been duly executed and delivered by the Company and constitutes a valid and binding obligation
of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies
or by other equitable principles of general application.
-11-
Section
4.3 CAPITALIZATION. As of the Execution Date, the authorized capital stock of the Company is expected to be as set forth on Schedule
4.3. Except as set forth in the SEC Documents or on Schedule 4.3, the Company has not issued any capital stock since its most
recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s
stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans
and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction Documents. Except as set forth in the SEC Documents or on Schedule
4.3, and except as a result of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights
to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into
or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares
of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not obligate the Company to issue shares of
Common Stock or other securities to any Person (other than the Investor) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s stockholders.
Section
4.4 LISTING AND MAINTENANCE REQUIREMENTS. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act, nor has the Company received any notification that the SEC is contemplating terminating such
registration. Except as set forth in the Company’s SEC filings, the Company has not, in the twelve (12) months preceding the Execution
Date, received notice from the Principal Market to the effect that the Company is not in compliance with the listing or maintenance requirements
of such Principal Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in
compliance with all such listing and maintenance requirements.
Section
4.5 SEC DOCUMENTS; DISCLOSURE. The Company has filed all reports, schedules, forms, statements and other documents required to
be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
one (1) year preceding the Execution Date (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred
to herein as the “SEC Documents”) on a timely basis or has received a valid extension of such time of filing and has
filed any such SEC Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and other federal laws, rules
and regulations applicable to such SEC Documents, and none of the SEC Documents when filed contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents
comply as to form and substance in all material respects with applicable accounting requirements and the published rules and regulations
of the SEC or other applicable rules and regulations with respect thereto. Such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto or (b) in the case of unaudited interim statements, to the extent they may
not include footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of
the Company as of the dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments). The Company maintains a system of internal accounting controls
appropriate for its size. There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or other
off balance sheet entity that is not disclosed by the Company in its financial statements or otherwise that would be reasonably likely
to have a Material Adverse Effect. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided the Investor or its agents or
counsel with any information that it believes constitutes or might constitute material, non- public information. The Company understands
and confirms that the Investor will rely on the foregoing representation in effecting transactions in securities of the Company.
-12-
Section
4.6 VALID ISSUANCES. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be validly issued, fully paid, and non-assessable, free and clear of all Liens imposed by the Company, other than restrictions
on transfer provided for in the Transaction Documents and under the Securities Act.
Section
4.7 NO CONFLICTS. The execution, delivery and performance of this Agreement and the other Transaction Documents by the Company,
and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance
of the Put Shares and the Commitment Shares, do not and will not: (a) result in a violation of the Company’s or any Subsidiary’s
certificate or articles of incorporation, by-laws or other organizational or charter documents, (b) conflict with, or constitute a material
default (or an event that with notice or lapse of time or both would become a material default) under, result in the creation of any
Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture, instrument or any “lock-up” or similar provision of any underwriting or similar
agreement to which the Company or any Subsidiary is a party, or (c) result in a violation of any federal, state or local law, rule, regulation,
order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or any Subsidiary or
by which any property or asset of the Company or any Subsidiary is bound or affected (except for such conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations as would not, individually or in the aggregate, have a Material Adverse Effect),
nor is the Company otherwise in violation of, conflict with or in default under any of the foregoing. The business of the Company is
not being conducted in violation of any law, ordinance or regulation of any governmental entity. The Company is not required under federal,
state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any
court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement or the other
Transaction Documents (other than any SEC, FINRA or state securities filings that may be required to be made by the Company in connection
with the issuance of the Commitment Shares or subsequent to any Closing or any registration statement that may be filed pursuant hereto);
provided that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the
relevant representations and agreements of Investor herein.
Section
4.8 NO MATERIAL ADVERSE CHANGE. No event has occurred that would have a Material Adverse Effect on the Company or any Subsidiary
that has not been disclosed in subsequent SEC filings.
Section
4.9 LITIGATION AND OTHER PROCEEDINGS. Except as set forth in the Company’s SEC filings, there are no actions, suits, investigations,
inquiries or proceedings pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or
any of their respective properties, nor has the Company received any written or oral notice of any such action, suit, proceeding, inquiry
or investigation, which would have a Material Adverse Effect or would require disclosure under the Securities Act or the Exchange Act.
No judgment, order, writ, injunction or decree or award has been issued by or, to the knowledge of the Company, requested of any court,
arbitrator or governmental agency which would have a Material Adverse Effect. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the SEC involving the Company, any Subsidiary, or any current or former director
or officer of the Company or any Subsidiary.
-13-
Section
4.10 REGISTRATION RIGHTS. Except as set forth in the Company’s SEC filings, no Person (other than the Investor) has any
right to cause the Company to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.
Section
4.11 INVESTOR’S STATUS. The Company acknowledges and agrees that the Investor is acting solely in the capacity of arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further
acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect
to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the Investor or any of its
representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely
incidental to the Investor’s purchase of the Securities. The Company further represents to the Investor that the Company’s
decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives
and advisors.
Section
4.12 NO GENERAL SOLICITATION; NO INTEGRATED OFFERING. Neither the Company, any Subsidiary, nor any of their respective Affiliates,
nor any Person acting on their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of the Securities. Neither the Company, any Subsidiary, nor
any of their respective Affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that would require registration of the offer and sale of any
of the Securities under the Securities Act, whether through integration with prior offerings or otherwise.
Section
4.13 INTELLECTUAL PROPERTY RIGHTS. The Company and each Subsidiary own or possess adequate rights or licenses to use all material
trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. None
of the Company’s, nor any Subsidiary’s Intellectual Property has expired or terminated, or, by the terms and conditions thereof,
could expire or terminate within three years from the date of this Agreement if such expiration or termination could reasonably be expected
to have a Material Adverse Effect. The Company does not have any knowledge of any infringement by the Company and/or any Subsidiary of
any material Intellectual Property of others, or of any such development of similar or identical trade secrets or technical information
by others, and there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened
against, the Company and/or any Subsidiary regarding the infringement of any Intellectual Property, which could reasonably be expected
to have a Material Adverse Effect.
Section
4.14 ENVIRONMENTAL LAWS. To the Company’s knowledge, the Company and each Subsidiary (i) is in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received all
permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its respective businesses and (iii)
is in compliance with all terms and conditions of any such permit, license or approval, except where, in each of the three foregoing
clauses, the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
-14-
Section
4.15 TITLE. Except as disclosed in the SEC Documents, the Company and each Subsidiary has good and marketable title in fee simple
to all real property owned by it and good and marketable title in all personal property owned by it that is material to the business
of the Company and each Subsidiary, in each case free and clear of all Liens and, except for Liens as do not materially affect the value
of such property and do not materially interfere with the use made and proposed to be made of such property by the Company or any Subsidiary
and Liens for the payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties. Any
real property and facilities held under lease by the Company or any Subsidiary is held under valid, subsisting and enforceable leases
with which the Company is in compliance with such exceptions as are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company or any Subsidiary.
Section
4.16 INSURANCE. The Company and each Subsidiary is insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company
and each Subsidiary is engaged. Neither the Company, nor any Subsidiary has been refused any insurance coverage sought or applied for,
and the Company has no reason to believe that it or any Subsidiary will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of the Company,
taken as a whole.
Section
4.17 REGULATORY PERMITS. The Company and each Subsidiary possesses all material certificates, authorizations and permits issued
by the appropriate federal, state or foreign regulatory authorities necessary to conduct its businesses, and neither the Company, nor
any Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization
or permit.
Section
4.18 TAX STATUS. The Company and each Subsidiary has made or filed all federal and state income and all other material tax returns,
reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company has set
aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations,
except those being contested in good faith and has set aside on its books provision reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.
Section
4.19 TRANSACTIONS WITH AFFILIATES. Except as set forth in the SEC Documents, none of the officers or directors of the Company
or any Subsidiary, and to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to
any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to
or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity
in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner, in each
case in excess of the lesser of (i) $120,000 or (ii) one percent of the average of the Company’s total assets at year end for the
last two completed fiscal years, other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for
expenses incurred on behalf of the Company or any Subsidiary and (iii) other employee benefits, including stock option agreements under
any stock option plan of the Company.
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Section
4.20 APPLICATION OF TAKEOVER PROTECTIONS. The Company and its board of directors have taken or will take prior to the Execution
Date all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the articles of incorporation or the laws of
the state of its incorporation which is or could become applicable to the Investor as a result of the transactions contemplated by this
Agreement, including, without limitation, the Company’s issuance of the Securities and the Investor’s ownership of the Securities.
Section
4.21 FOREIGN CORRUPT PRACTICES. Neither the Company, any Subsidiary, nor to the knowledge of the Company, any agent or other Person
acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign
or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii)
failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any Person acting on its behalf of which
the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices
Act of 1977, as amended.
Section
4.22 SARBANES-OXLEY. The Company is in compliance with all provisions of the Sarbanes-Oxley Act of 2002, as amended, which are
applicable to it.
Section
4.23 CERTAIN FEES. Except as set forth in the disclosure schedule or in the Company’s SEC filings, no brokerage or finder’s
fees or commissions are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Investor shall have no obligation
with respect to any fees or with respect to any claims made by or on behalf of any Persons for fees of a type contemplated in this Section
4.23 that may be due in connection with the transactions contemplated by the Transaction Documents.
Section
4.24 INVESTMENT COMPANY. The Company is not an “investment company” within the meaning of the Investment Company Act
of 1940, as amended.
Section
4.25 ACCOUNTANTS. The Company’s accountants are set forth in the SEC Documents and, to the knowledge of the Company, such
accountants are an independent registered public accounting firm as required by the Securities Act.
Section
4.26 NO MARKET MANIPULATION. Neither the Company, nor any Subsidiary has, and to its knowledge no Person acting on either of their
behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid
any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for
soliciting another to purchase any other securities of the Company.
Section
4.27 NO DISQUALIFICATION EVENTS. None of the Company, any Subsidiary, any of their predecessors, any affiliated issuer, any director,
executive officer, other officer of the Company or any Subsidiary participating in the offering contemplated hereby, any beneficial owner
of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter
(as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each,
an “Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)
under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2)
or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject
to a Disqualification Event.
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Section
4.28 MONEY LAUNDERING. The Company and each Subsidiary is in compliance with, and has not previously violated, the USA PATRIOT
ACT of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, but not limited to, the
laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but
not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With
Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in
31 CFR, Subtitle B, Chapter V.
Section
4.29 ILLEGAL OR UNAUTHORIZED PAYMENTS; POLITICAL CONTRIBUTIONS. Neither the Company, nor any Subsidiary has, nor, to the best
of the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees,
agents or other representatives of the Company, any Subsidiary or any other business entity or enterprise with which the Company is or
has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property,
or services, whether or not in contravention of applicable law, (a) as a kickback or bribe to any Person or (b) to any political organization,
or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving
the direct or indirect use of funds of the Company.
Section
4.30 SHELL COMPANY STATUS. The Company is not currently an issuer identified in Rule 144(i)(1)(i) under the Securities Act, is
subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, has filed all reports and other materials required
to be filed by Section 13 or 15(d) of the Exchange Act, as applicable during the preceding 12 months, and, as of a date at least one
year prior to the Execution Date, has filed current “Form 10 information” with the SEC (as defined in Rule 144(i)(3) of the
Securities Act) reflecting its status as an entity that is no longer an issuer described in Rule 144(i)(1)(i) of the Securities Act.
Section
4.31 ABSENCE OF SCHEDULES. In the event that on the Execution Date, the Company does not deliver any disclosure schedule contemplated
by this Agreement, the Company hereby acknowledges and agrees that (i) each such undelivered disclosure schedule shall be deemed to read
as follows: “Nothing to Disclose”, and (ii) the Investor has not otherwise waived delivery of such disclosure schedule.
ARTICLE
V
COVENANTS OF INVESTOR
Section
5.1 COMPLIANCE WITH LAW; TRADING IN SECURITIES. The Investor’s trading activities with respect to the Common Stock will
be in compliance with all applicable state and federal securities laws and regulations and the rules and regulations of FINRA and the
Principal Market.
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Section
5.2 SHORT SALES AND CONFIDENTIALITY. The Investor represents that, as of the Execution Date and for the 60 days prior thereto,
it and its Affiliates have not been and are not “short” any Common Stock. Neither the Investor, nor any Affiliate of the
Investor acting on its behalf or pursuant to any understanding with it, will in any manner whatsoever, directly or indirectly, (i) participate
in or execute any Short Sales during the period from the Execution Date to the end of the Commitment Period or (ii) any hedging transaction
that would create a net short position with respect to the shares of Common Stock. For the purposes hereof, and in accordance with Regulation
SHO, the sale after delivery of a Put Notice of such number of shares of Common Stock reasonably expected to be purchased under a Put
Notice shall not be deemed a Short Sale. The Investor shall, until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company in accordance with the terms of this Agreement, maintain the confidentiality of the existence and terms of this
transaction and the information included in the Transaction Documents. The Investor agrees not to disclose any Confidential Information
of the Company to any third party, except for attorneys, accountants, advisors who have a need to know such Confidential Information
and are bound by confidentiality, and shall not use any Confidential Information for any purpose other than in connection with, or in
furtherance of, the transactions contemplated hereby. The Investor acknowledges that the Confidential Information of the Company shall
remain the property of the Company and agrees that it shall take all reasonable measures to protect the secrecy of any Confidential Information
disclosed by the Company.
ARTICLE
VI
COVENANTS OF THE COMPANY
Section
6.1 LISTING OF COMMON STOCK. The Company shall promptly secure the listing of all of the Put Shares and Commitment Shares to be
issued to the Investor hereunder on the Principal Market (subject to official notice of issuance) and shall use its commercially reasonable
efforts to maintain, so long as the Common Stock shall be so listed, the listing of all such Put Shares and Commitment Shares from time
to time issuable hereunder. The Company shall use its commercially reasonable efforts to continue the listing and trading of the Common
Stock on the Principal Market (including, without limitation, maintaining sufficient net tangible assets) and will comply in all respects
with the Company’s reporting, filing and other obligations under the bylaws or rules of FINRA and the Principal Market. The Company
shall not take any action that would reasonably be expected to result in the delisting or suspension of the Common Stock on the Principal
Market. The Company shall promptly, and in no event later than the following Trading Day after receiving such notice, provide to the
Investor copies of any notices it receives from any Person regarding the continued eligibility of the Common Stock for listing on the
Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 6.1.
The Company shall take all action necessary to ensure that the Common Stock can be transferred electronically as DWAC Shares. If the
Company receives a final non-appealable delisting notice from the Principal Market or if the Common Stock fails to be listed on an Eligible
Market, then the Investor may terminate its obligations under this Agreement by written notice to the Company and may deem any outstanding
Put Notice as withdrawn.
Section
6.2 OTHER EQUITY LINES. So long as this Agreement remains in effect, the Company covenants and agrees that it will not enter into
any other equity line of credit agreement with any other party, without the Investor’s prior written consent, which consent may
be granted or withheld in the Investor’s sole and absolute discretion.
Section
6.3 FILING OF CURRENT REPORT AND REGISTRATION STATEMENT. The Company agrees that it shall file a Current Report on
Form 8-K, including certain Transaction Documents as exhibits thereto, with the SEC within the time required by the Exchange Act,
relating to the transactions contemplated by, and describing the material terms and conditions of, such Transaction Documents (the
“Current Report”). The Company shall permit the Investor to review and comment upon the pre-filing draft version
of the Current Report at least two (2) Trading Days prior to its filing with the SEC, and the Company shall give reasonable
consideration to all such comments. The Investor shall use its reasonable best efforts to comment upon the pre-filing draft version
of the Current Report within one (1) Trading Day from the date the Investor receives it from the Company. The Company shall also
file with the SEC a new registration statement on Form S-1 (the “Registration Statement”), the timing and terms
of which shall be governed by Section 2 of the Registration Rights Agreement.
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Section
6.4 COMMITMENT FEE; ISSUANCE OF COMMITMENT SHARES; FAILURE TO INCLUDE IN REGISTRATION STATEMENT.
(a)
In consideration for the Investor’s execution and delivery of, and performance under this Agreement, on the Execution Date, the
Company shall pay to the Investor $100,000 (the “Commitment Fee”), which shall be in the form of shares of Common
Stock. All shares of Common Stock issued by the Company to the Investor under this Section 6.4 shall be referred to as “Commitment
Shares.” The Commitment Shares shall be issued and delivered to the Investor on the Execution Date, and the number of Commitment
Shares to be issued to the Investor on the Execution Date shall be equal to the quotient obtained by dividing (a) $100,000 by
(b) the closing price of the Common Stock on the Principal Market on the Trading Day immediately preceding the Execution Date (the “Initial
Commitment Share Reference Price”). The investor may, at its option, elect to receive in lieu of any or all of the Commitment
Shares (including True-Up Commitment Shares, as defined below) pre-funded warrants to purchase an equal number of shares of Common Stock
exercisable at $0.0001 per share, permitting cashless (net) exercise and with no termination date, and in form and substance reasonably
acceptable to the Investor (the “Pre-Funded Warrants”). (To the extent that the Investor receives Pre-Funded Warrants pursuant
to this Section, the term “Commitment Shares” as used in this Agreement and the Registration Rights Agreement shall
include the shares issuable upon exercise of such Pre-Funded Warrants.)
(b)
Upon the earlier of (i) the Commitment Shares becoming eligible for resale pursuant to Rule 144 under the Securities Act (“Rule
144 Eligible”) or (ii) the effectiveness of the Registration Statement covering the resale of the Commitment Shares (such earlier
date, the “True-Up Measurement Date”), if the True-Up Commitment Share Reference Price is less than the Initial Commitment
Share Reference Price (in each case, as appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization
or similar transaction occurring in the interim), the Company shall immediately issue and deliver to the Investor such number of additional
Commitment Shares (the “True-Up Commitment Shares”) as is necessary so that the aggregate number of Commitment Shares
issued equals the quotient obtained by dividing $100,000 by the True-Up Commitment Share Reference Price. For purposes hereof, the “True-Up
Commitment Share Reference Price” means (A) if the Registration Statement becomes effective prior to 4:00 p.m. (New York City time)
on a Trading Day, the closing price of the Common Stock on the Principal Market on the Trading Day immediately preceding such effectiveness,
or (B) if the Registration Statement becomes effective at or after 4:00 p.m. (New York City time), the closing price of the Common Stock
on the Principal Market on the Trading Day on which such effectiveness occurs; provided, however, that if the initial Commitment Shares
become Rule 144 Eligible prior to the effectiveness of the Registration Statement, the True-Up Commitment Share Reference Price shall
be the closing price of the Common Stock on the Principal Market on the Trading Day immediately preceding the date on which the initial
Commitment Shares become Rule 144 Eligible.
(c)
For the avoidance of doubt, the Commitment Fee and Commitment Shares shall be fully earned as of the Execution Date, and the issuance
of the Commitment Shares is not contingent upon any other event or condition, including, without limitation, the effectiveness of the
Registration Statement or the Company’s submission of a Put Notice to the Investor and irrespective of any termination of this
Agreement.
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(d)
To the extent that the issuance of Commitment Shares to the Investor would exceed the Beneficial Ownership Limitation as set forth in
Section 7.1(g), the Investor shall be issued pre-funded warrants to purchase the number of shares of Common Stock by which the Commitment
Shares otherwise to be issued would exceed such limitation.
On
the Execution Date, the Company shall deliver to the Transfer Agent the Irrevocable Transfer Agent Instruction Letter duly executed by
the Company and the Transfer Agent. The Company and the Investor agree (i) that the Investor may issue one or more Notices of Issuance
(as defined in the Irrevocable Transfer Agent Instruction Letter) instructing the Transfer Agent to issue to the Investor True-Up Commitment
Shares due to the Investor, provided that all Notices of Issuance in the aggregate do not exceed the total number of True-Up Commitment
Shares calculated as set forth above, and (ii) that all calculations by the Investor of the number of True-Up Commitment Shares to be
issued shall be deemed correct absent manifest error.
(f)The
Company shall include in the Registration Statement filed with the SEC all Commitment Shares.
Section
6.5 DUE DILIGENCE; CONFIDENTIALITY; NON-PUBLIC INFORMATION. The Investor shall have the right, from time to time as the Investor
may reasonably deem appropriate, to perform reasonable due diligence on the Company during normal business hours. The Company, each Subsidiary
and their respective officers and employees shall provide information and reasonably cooperate with the Investor in connection with any
reasonable request by the Investor related to the Investor’s due diligence of the Company. The Company agrees not to disclose any
Confidential Information of the Investor to any third party, except for attorneys, accountants, advisors who have a need to know such
Confidential Information and are bound by confidentiality, and shall not use any Confidential Information for any purpose other than
in connection with, or in furtherance of, the transactions contemplated hereby. The Company acknowledges that the Confidential Information
of the Investor shall remain the property of the Investor and agrees that it shall take all reasonable measures to protect the secrecy
of any Confidential Information disclosed by the Investor. The Company confirms that neither it nor any other Person acting on its behalf
shall provide the Investor or its agents or counsel with any information that constitutes or might constitute material, non-public information,
unless a simultaneous public announcement thereof is made by the Company in the manner contemplated by Regulation FD. In the event of
a breach of the foregoing covenant by the Company or any Person acting on its behalf (as determined in the reasonable good faith judgment
of the Investor), in addition to any other remedy provided herein or in the other Transaction Documents, the Investor, upon the advice
of its counsel, shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise,
of such material, non-public information without the prior approval by the Company; provided the Investor shall have first provided notice
to the Company that it believes it has received information that constitutes material, non-public information, and the Company shall
have had at least twenty-four (24) hours to publicly disclose such material, non-public information prior to any such disclosure by the
Investor, and the Company shall have failed to publicly disclose such material, non-public information within such time period. The Investor
shall not have any liability to the Company, any Subsidiary, or any of their respective directors, officers, employees, stockholders,
affiliates or agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing
covenants in effecting transactions in securities of the Company.
Section
6.6 PURCHASE RECORDS. The Company shall maintain records showing the Available Amount at any given time and the date, Investment
Amount and Put Shares for each Put, contained in the applicable Put Notice.
Section
6.7 TAXES. The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance
and delivery of any shares of Common Stock to the Investor made under this Agreement.
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Section
6.8 USE OF PROCEEDS. The Company will use the net proceeds from the offering of Put Shares hereunder for the purposes described
in the Registration Statement.
Section
6.9 OTHER TRANSACTIONS. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement
or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the
Company to perform its obligations under the Transaction Documents, including, without limitation, the obligation of the Company to deliver
the Put Shares and the Commitment Shares to the Investor in accordance with the terms of the Transaction Documents.
Section
6.10 INTEGRATION. In any case subject to the terms of the Registration Rights Agreement, from and after the Execution Date, neither
the Company, nor or any of its Subsidiaries or Affiliates will, and the Company shall use its reasonable efforts to ensure that no Person
acting on their behalf will, directly or indirectly, make any offers or sales of any security or solicit any offers to buy any security,
under circumstances that would require registration of the offer and sale of any of the Securities under the Securities Act.
Section
6.11 TRANSACTION DOCUMENTS. On the Execution Date, the Company shall deliver to the Investor executed copies of all of the Transaction
Documents.
Section
6.12 STANDSTILL. Unless waived by the Investor, notwithstanding any other provisions set forth in the Transaction Documents, the Company
hereby covenants and agrees not to issue any shares of Common Stock or other securities (including debt securities) convertible into
or exercisable or exchangeable for shares of Common Stock, or enter into any agreement to do so, (a) for a period of ten (10) Trading
Days following the date the Registration Statement becomes effective, and (b) during each period (each, a “Standstill Period”)
(i) (A) beginning upon the submission of any Regular Put Notice that has been accepted in accordance with the terms hereof and (B) ending
upon the later of (1) the Trading Day following the expiration of the Regular Valuation Period relating to such Regular Put Notice, and
(2) close of the Trading Day on which the aggregate trading volume of the Common Stock over the Trading Days since issuance of such Regular
Put Notice shall have exceeded Four Hundred percent (400%) of the number of Put Shares sold pursuant to such Regular Put Notice, and
(ii) (A) beginning upon the submission of any Intraday Put Notice that has been accepted in accordance with the terms hereof and (B)
ending at the end of the applicable Intraday Valuation Period. The provisions of this Section 6.12 shall not apply to sales of such securities
in an “at-the-market” offering, except during the period from the time when the Regular Valuation Period expires until the
time specified in clause (b)(i)(B)(2) above.
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Section
6.13 Stockholder Approval. Notwithstanding anything to the contrary herein, the Company shall not effect any sales under this Agreement
and the Investor shall not have the obligation to purchase shares of Common Stock under this Agreement to the extent (but only to the
extent) that after giving effect to such purchase and sale the aggregate number of Shares issued under this Agreement would exceed 1,024,597
(representing 19.99% of the aggregate number of shares of Common Stock issued and outstanding as of the Execution Date of this Agreement
(subject to adjustment for any stock splits, combinations or the like)), calculated in accordance with the rules of the Principal Market,
which number shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any
transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under the applicable
rules of the Principal Market (such maximum number of shares, the “Exchange Cap”) provided that, the Exchange Cap will not
apply if (a) the Company’s stockholders have approved the issuance of shares of Common Stock pursuant to this Agreement in excess
of the Exchange Cap in accordance with the rules of the Principal Market, or (b) the Average Price of all applicable sales of shares
of Common Stock hereunder (including any sales covered by a Regular Put Notice or Intraday Put Notice that has been delivered prior to
the determination of whether this clause (b) applies) equals or exceed $0.3706 per share (which represents the lower of (i) the Nasdaq
Official Closing Price (as reflected on Nasdaq.com) immediately preceding the Execution Date; or (ii) the average Nasdaq Official Closing
Price for the five Trading Days immediately preceding the Execution Date). In connection with each Regular Put Notice or Intraday Put
Notice, any portion of a Regular Put or Intraday Put that would exceed the Exchange Cap shall automatically be withdrawn with no further
action required by the Company and such Regular Put Notice or Intraday Put Notice shall be deemed automatically modified to reduce the
aggregate amount of the requested Regular Put or Intraday Put by an amount equal to such withdrawn portion in respect of each Regular
Put Notice or Intraday Put Notice.
ARTICLE
VII
CONDITIONS
TO DELIVERY OF PUT NOTICES AND CONDITIONS TO CLOSING
Section
7.1 CONDITIONS PRECEDENT TO THE OBLIGATION OF INVESTOR TO PURCHASE PUT SHARES. The obligation of the Investor hereunder to purchase
Put Shares is subject to the satisfaction of each of the following conditions:
(a)
REGISTRATION STATEMENT. The Registration Statement, and any amendment or supplement thereto, shall be and remain effective for
the resale by the Investor of the Put Shares and the Commitment Shares and (i) neither the Company nor the Investor shall have received
notice that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that the SEC otherwise
has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently, or intends or has threatened
to do so and (ii) no other suspension of the use of, or withdrawal of the effectiveness of, such Registration Statement or related prospectus
shall exist. The Company shall have prepared and filed with the SEC a final and complete prospectus (the preliminary form of which shall
be included in the Registration Statement) and shall have delivered to the Investor a true and complete copy thereof. Such prospectus
shall be current and available for the resale by the Investor of all of the Securities covered thereby.
(b)
ACCURACY OF THE COMPANY’S REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company shall be true
and correct in all material respects as of the Execution Date, each date a Put Notice is submitted, and as of the date of each Closing
(except for representations and warranties under the first sentence of Section 4.3, which are specifically made as of the Execution
Date and shall be true and correct in all respects as of the Execution Date).
(c)
PERFORMANCE BY THE COMPANY. The Company shall have performed, satisfied and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company.
(d)
NO INJUNCTION. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or adopted by any court or governmental authority of competent jurisdiction that prohibits or directly and materially adversely affects
any of the transactions contemplated by the Transaction Documents, and no proceeding shall have been commenced that may have the effect
of prohibiting or materially adversely affecting any of the transactions contemplated by the Transaction Documents.
(e)
ADVERSE CHANGES. Since the date of filing of the Company’s most recent SEC Document, no event that had or is reasonably
likely to have a Material Adverse Effect has occurred.
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(f)
NO SUSPENSION OF TRADING IN OR DELISTING OF THE COMMON STOCK. Trading of the Common Stock shall not have been suspended by the
SEC, the Principal Market or FINRA, or otherwise halted for any reason, and the Common Stock shall have been approved for listing or
quotation on and shall not have been delisted from the Principal Market. In the event of a suspension, delisting, or halting for a period
of more than two hours, of the trading of the Common Stock, as contemplated by this Section 7.1(f), while a Regular Put Notice
is outstanding, the Investor shall have the right to return to the Company any remaining amount of Put Shares associated with such Put,
and the Purchase Price with respect to such Put shall be reduced accordingly. In the event of a suspension, delisting, or halting of
the trading of the Common Stock for any time period while an Intraday Put Notice is outstanding, the Investor shall have the right to
return to the Company any remaining amount of Put Shares associated with such Intraday Put, and the Purchase Price with respect to such
Intraday Put shall be reduced accordingly.
(g)
BENEFICIAL OWNERSHIP LIMITATION. As of the date of the Closing for such issuance and sale, the number of Put Shares to be purchased
by the Investor shall not exceed the number of such shares that, when aggregated with all other shares of Common Stock then beneficially
owned or deemed beneficially owned by the Investor and its Affiliates, would result in the Investor and its Affiliates owning more than
the Beneficial Ownership Limitation (as defined below), as determined in accordance with Section 13(d) of the Exchange Act and the regulations
promulgated thereunder. For purposes of this Section 7.1(g), in the event that the amount of shares of Common Stock outstanding,
as determined in accordance with Section 13(d) of the Exchange Act and the regulations promulgated thereunder, is greater on a Closing
Date than on the date upon which the Put Notice associated with such Closing Date is given, the amount of shares of Common Stock outstanding
on such Closing Date shall govern for purposes of determining whether the Investor, when aggregating all purchases of shares of Common
Stock made pursuant to this Agreement, would own more than the Beneficial Ownership Limitation following such Closing Date. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to
the issuance of shares of Common Stock issuable pursuant to a Put Notice. The Investor, upon notice to the Company, may increase or decrease
the Beneficial Ownership Limitation provisions of this Section 7.1(g), provided that the Beneficial Ownership Limitation in no
event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of Common Stock
issuable pursuant to a Put Notice and the provisions of this Section 7.1(g) shall continue to apply. Any increase in the Beneficial
Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company.
(h)
NO KNOWLEDGE. The Company shall have no knowledge of any event more likely than not to have the effect of causing the Registration
Statement to be suspended or otherwise ineffective (which event is more likely than not to occur within the fifteen (15) Trading Days
following the Trading Day on which such Put Notice is deemed delivered). The Company shall have no knowledge of any untrue statement
(or alleged untrue statement) of a material fact or omission (or alleged omission) of a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in the Registration
Statement, any effective registration statement filed pursuant to the Registration Rights Agreement or any post-effective amendment or
prospectus which is a part of the foregoing, unless the Company has filed an amendment to the Registration Statement or made a filing
pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC.
(i)
NO VIOLATION OF SHAREHOLDER APPROVAL REQUIREMENT. The issuance of the Put Shares shall not violate the shareholder approval requirements
of the Principal Market.
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(j)
OFFICER’S CERTIFICATE. On the date of delivery of each Put Notice, the Investor shall have received the Closing Certificate
executed by an executive officer of the Company and to the effect that all the conditions to such Closing shall have been satisfied as
of the date of each such certificate.
(k)
DWAC ELIGIBLE. The Common Stock must be DWAC Eligible and not subject to a “DTC chill.”
(l)
SEC DOCUMENTS. All reports, schedules, registrations, forms, statements, information and other documents required to have been
filed by the Company with the SEC pursuant to the reporting requirements of the Exchange Act (other than Forms 8-K) shall have been filed
with the SEC within the applicable time periods prescribed for such filings under the Exchange Act.
(m)
TRANSFER AGENT INSTRUCTION LETTER. The Transfer Agent Instruction Letter shall have been executed and delivered by the Company
to the Transfer Agent and acknowledged and agreed to in writing by the Transfer Agent, and the Company shall have no knowledge of any
fact or circumstance that would prevent the Transfer Agent from complying with the terms of the Transfer Agent Instruction Letter.
(n)
IRREVOCABLE TRANSFER AGENT INSTRUCTION LETTER. The Irrevocable Transfer Agent Instruction Letter shall have been executed and
delivered by the Company to the Transfer Agent and acknowledged and agreed to in writing by the Transfer Agent, and the Company shall
have no knowledge of any fact or circumstance that would prevent the Transfer Agent from complying with the terms of the Irrevocable
Transfer Agent Instruction Letter.
(o)
BROKER APPROVAL. The Put Shares shall have been approved by the Investor’s prime broker or designated clearing firm for
deposit to its account with the Depository Trust Company system; provided that the Investor shall have used commercially reasonable efforts
to satisfy any requirements of such prime broker or designated clearing firm in respect of such approval.
(p)
NO VIOLATION. No statute, regulation, order, guidance, decree, writ, ruling or injunction shall have been enacted, entered, promulgated,
threatened or endorsed by any federal, state, local or foreign court or governmental authority of competent jurisdiction, including,
without limitation, the SEC, which prohibits the consummation of or which would materially modify or delay any of the transactions contemplated
by the Transaction Documents.
(q)
LEGAL OPINION. The Company shall cause to be delivered to the Investor a written opinion or opinions of counsel reasonably satisfactory
to the Investor, in form and substance reasonably satisfactory to the Investor and its counsel, relating to the availability and effectiveness
of the Registration Statement, as supplemented by any prospectus supplement or amendment thereto, and regarding the Company’s compliance
with the laws of the State of Delaware and the federal securities laws of the United States in the issuance, sale and registration of
the Put Shares and Commitment Shares and entrance into the transaction documents.
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(r)
NO VARIABLE-RATE TRANSACTIONS. Without the prior written consent of the Investor, from any Put Date until the end of any Standstill
Period the Company shall not enter into any Variable Rate Transaction. For purposes of this Agreement, “Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any equity or debt securities that are convertible into, exchangeable or
exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at a conversion
price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the
Common Stock at any time after the initial issuance of such equity or debt securities, or (B) with a conversion, exercise or exchange
price that is subject to being reset at some future date after the initial issuance of such equity or debt security or upon the occurrence
of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock (including,
without limitation, any “full ratchet” or “weighted average” anti-dilution provisions, but not including any
standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction),
(ii) issues or sells any equity or debt securities, including without limitation, shares of Common Stock or Common Stock Equivalents,
either (A) at a price that is subject to being reset at some future date after the initial issuance of such debt or equity security or
upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for
the Common Stock (other than standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split
or other similar transaction), or (B) that are subject to or contain any put, call, redemption, buy-back, price-reset or other similar
provision or mechanism (including, without limitation, a “Black-Scholes” put or call right, other than in connection with
a “fundamental transaction”) that provides for the issuance of additional equity securities of the Company or the payment
of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of credit” (other
than with the Investor) or other continuous offering or similar offering of shares of Common Stock or Common Stock Equivalents, whereby
the Company may sell shares of Common Stock or Common Stock Equivalents at a future determined price; provided, however, that the Company
may effect sales pursuant to a customary “at-the-market” facility with a FINRA-registered broker-dealer as sales agent, and
the issuance of shares of Common Stock in such an “at-the-market” offering shall not be deemed a Variable Rate Transaction.
(s)
NO NON-PUBLIC INFORMATION. Neither the Investor nor any of its agents or counsel shall be in possession of any information that
constitutes or might constitute material, non-public information with respect to the Company.
(t)
COMMITMENT SHARES ISSUED AS DWAC SHARES. Following the effectiveness of the Registration Statement any Common Stock issuable to
the Investor pursuant to Section 6.4 shall have been credited by the Company’s transfer agent to the Investor’s or its designee’s
account at DTC as DWAC Shares.
ARTICLE
VIII
LEGENDS
Section
8.1 NO RESTRICTIVE STOCK LEGEND. No restrictive stock legend shall be placed on the share certificates representing the Put Shares.
Section
8.2 INVESTOR’S COMPLIANCE. Nothing in this Article VIII shall affect in any way the Investor’s obligations
hereunder to comply with all applicable securities laws upon the sale of the Common Stock.
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ARTICLE
IX
NOTICES;
INDEMNIFICATION
Section
9.1 NOTICES. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall
be in writing, except for Put Notices which shall be delivered via email in accordance with Sections 2.1 and 2.2, and, unless
otherwise specified herein, shall be (a) personally served, (b) deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (c) delivered by a nationally recognized overnight delivery service with charges prepaid, or (d) transmitted by hand
delivery, telegram, or e-mail as a PDF, addressed as set forth below or to such other address as such party shall have specified most
recently by written notice given in accordance herewith. Any notice or other communication required or permitted to be given hereunder
shall be deemed effective (i) upon hand delivery or delivery by e-mail at the address designated below (if delivered on a business day
during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other
than on a business day during normal business hours where such notice is to be received) or (ii) on the first business day following
the date of mailing by a nationally recognized overnight delivery service or on the fifth business day after deposited in the mail, in
each case, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur.
The
addresses for such communications shall be:
If to the Company:
My
Size, Inc.
HaNegev
4, POB 1206
Airport
City, Israel, 7010000
Attention:
Ronen Luzon, Chief Executive Officer
E-mail:
ronen@mysizeid.com
With
a copy (which shall not constitute notice) to:
Greenberg
Traurig, P.A.
One
Azrieli Center
Round
Tower 30th Floor
132
Menachem Begin Rd, Tel Aviv 6701101
Attention:
Gary Emmanuel
Email:
Gary.Emmanuel@gtlaw.com
If
to the Investor:
Square
Gate Capital Master Fund, LLC – Series 5
40
Wall Street
Floor 28, Suite 2728
New
York, NY 10005
E-mail:
eloc@squaregatecapital.com
Attention:
Christopher Perugini, Managing Partner
with
a copy to (that shall not constitute notice)
Sichenzia
Ross Ference Carmel LLP
1185 Avenue of the Americas, 31st Floor
New
York, NY 10036
E-mail:
rcarmel@srfc.law
Attention:
Ross David Carmel
-26-
Either
party hereto may from time to time change its address or e-mail for notices under this Section 9.1 by giving at least ten (10)
days’ prior written notice of such changed address to the other party hereto.
Section
9.2 INDEMNIFICATION. The Company (an “Indemnifying Party”) agrees to indemnify and hold harmless the Investor
along with its officers, directors, employees, and authorized agents and representatives, and each Person or entity, if any, who controls
such party within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act or the rules and regulations thereunder
(an “Indemnified Party”) from and against any and all Damages, joint or several, and any and all actions in respect
thereof to which the Indemnified Party becomes subject to, resulting from, arising out of or relating to (i) any misrepresentation, breach
of warranty or nonfulfillment of or failure to perform any covenant or agreement on the part of the Indemnifying Party contained in this
Agreement, (ii) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any registration
statement pursuant to the Registration Rights Agreement or any post-effective amendment thereof or supplement thereto, or the omission
or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus or contained in the
final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the circumstances
under which the statements therein were made, not misleading, or (iv) any material violation or alleged material violation by the Company
of the Securities Act, the Exchange Act, any state securities law or any rule or regulation under the Securities Act, the Exchange Act
or any state securities law, as such Damages are incurred, except to the extent such Damages result primarily from the Indemnified Party’s
failure to perform any covenant or agreement contained in this Agreement or the Indemnified Party’s negligence, recklessness, fraud,
willful misconduct or bad faith in performing its obligations under this Agreement; provided, however, that the foregoing
indemnity agreement shall not apply to any Damages of an Indemnified Party to the extent, but only to the extent, (a) arising out of
or based upon any untrue statement or alleged untrue statement or omission or alleged omission made by an Indemnifying Party in reliance
upon and in conformity with written information furnished to the Indemnifying Party by the Indemnified Party expressly for use in the
Registration Statement, or any post-effective amendment thereof or supplement thereto, or (b) resulting from the gross negligence or
willful misconduct of the Indemnified Party (as determined by a final non-appealable judgment of court having jurisdiction over such
matter).
Section
9.3 METHOD OF ASSERTING INDEMNIFICATION CLAIMS. All claims for indemnification by any Indemnified Party under Section 9.2
shall be asserted and resolved as follows:
(a)
In the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.2 is asserted against
or sought to be collected from such Indemnified Party by a Person other than a party hereto or an Affiliate thereof (a “Third
Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all papers served, if any, and
specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s claim for indemnification that is
being asserted under any provision of Section 9.2 against an Indemnifying Party, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of such Third Party Claim (a “Claim Notice”) with reasonable
promptness to the Indemnifying Party. If the Indemnified Party fails to provide the Claim Notice with reasonable promptness after the
Indemnified Party receives notice of such Third Party Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified
Party with respect to such Third Party Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced
by such failure of the Indemnified Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable within the
period ending fifteen(15) calendar days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity Notice (as
defined below) (the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability
to the Indemnified Party under Section 9.2 and whether the Indemnifying Party desires, at its sole cost and expense, to defend
the Indemnified Party against such Third Party Claim.
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(i)
If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to this Section 9.3(a), then the Indemnifying Party shall have
the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and expense of the Indemnifying
Party, such Third Party Claim by all appropriate proceedings, which proceedings shall be vigorously and diligently prosecuted by the
Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the consent of
the Indemnified Party in the case of any settlement that provides for any relief other than the payment of monetary damages or that provides
for the payment of monetary damages as to which the Indemnified Party shall not be indemnified in full pursuant to Section 9.2).
The Indemnifying Party shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided,
however, that the Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying
Party’s delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings
or take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests; and
provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense
of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party Claim that the Indemnifying
Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third Party Claim
controlled by the Indemnifying Party pursuant to this clause (i), and except as provided in the preceding sentence, the Indemnified Party
shall bear its own costs and expenses with respect to such participation. Notwithstanding the foregoing, the Indemnified Party may takeover
the control of the defense or settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section
9.2 with respect to such Third Party Claim.
(ii)
If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to this Section 9.3(a), or if the Indemnifying Party gives such notice but fails to prosecute vigorously
and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within the Dispute Period,
then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third Party Claim
by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in a reasonable manner and in good faith
or will be settled at the discretion of the Indemnified Party (with the consent of the Indemnifying Party, which consent will not be
unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement
thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of
the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third Party Claim which
the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this clause (ii), if the Indemnifying Party has notified
the Indemnified Party within the Dispute Period that the Indemnifying Party disputes its liability or the amount of its liability hereunder
to the Indemnified Party with respect to such Third Party Claim and if such dispute is resolved in favor of the Indemnifying Party in
the manner provided in clause (iii) below, the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified
Party’s defense pursuant to this clause (ii) or of the Indemnifying Party’s participation therein at the Indemnified Party’s
request, and the Indemnified Party shall reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the
Indemnifying Party in connection with such litigation. The Indemnifying Party may participate in, but not control, any defense or settlement
controlled by the Indemnified Party pursuant to this clause (ii), and the Indemnifying Party shall bear its own costs and expenses with
respect to such participation.
-28-
(iii)
If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability to the
Indemnified Party with respect to the Third Party Claim under Section 9.2 or fails to notify the Indemnified Party within the
Dispute Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party with respect
to such Third Party Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability of the Indemnifying
Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying
Party has timely disputed its liability or the amount of its liability with respect to such Third Party Claim, the Indemnifying Party
and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that
if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute
such legal action as it deems appropriate.
(b)
In the event any Indemnified Party should have a claim under Section 9.2 against the Indemnifying Party that does not involve
a Third Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under Section 9.2 specifying
the nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount, determined
in good faith, of such claim (an “Indemnity Notice”) with reasonable promptness to the Indemnifying Party. The failure
by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that
the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party notifies the Indemnified
Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice or fails to notify the Indemnified
Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount of the claim described in such Indemnity
Notice, the amount of Damages specified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under
Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified Party on demand. If the Indemnifying
Party has timely disputed its liability or the amount of its liability with respect to such claim, the Indemnifying Party and the Indemnified
Party shall proceed in good faith to negotiate a resolution of such dispute; provided, however, that if the dispute is not resolved within
thirty (30) days after the Claim Notice, the Indemnifying Party shall be entitled to institute such legal action as it deems appropriate.
(c)
The Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and are due and payable, for any reasonable
legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim.
(d)
The indemnity provisions contained herein shall be in addition to (i) any cause of action or similar rights of the Indemnified Party
against the Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party may be subject to.
ARTICLE
X
MISCELLANEOUS
Section
10.1 GOVERNING LAW. 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 conflicts of law (whether of the State of New York or any other jurisdiction).
-29-
Section
10.2 ARBITRATION. Any disputes, claims, or controversies arising out of or relating to the Transaction Documents, or the transactions,
contemplated thereby, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the
scope or applicability of this Agreement to arbitrate, shall be referred to and resolved solely and exclusively by binding arbitration
to be conducted before the Judicial Arbitration and Mediation Service (“JAMS”), or its successor pursuant the expedited
procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”), including Rules 16.1
and 16.2 of those Rules. The arbitration shall be held in New York, New York, before a tribunal consisting of three (3) arbitrators each
of whom will be selected in accordance with the “strike and rank” methodology set forth in Rule 15. Either party to this
Agreement may, without waiving any remedy under this Agreement, seek from any federal or state court sitting in the Southern District
of New York any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment
of the arbitral tribunal. The costs and expenses of such arbitration shall be paid by and be the sole responsibility of the Company,
including but not limited to the Investor’s attorneys’ fees and each arbitrator’s fees. The arbitrators’ decision
must set forth a reasoned basis for any award of damages or finding of liability. The arbitrators’ decision and award will be made
and delivered as soon as reasonably possibly and in any case within sixty (60) days’ following the conclusion of the arbitration
hearing and shall be final and binding on the parties and may be entered by any court having jurisdiction thereof.
Section
10.3 JURY TRIAL WAIVER. THE COMPANY AND THE INVESTOR HEREBY WAIVE A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT
BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER IN RESPECT OF ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTION DOCUMENTS.
Section
10.4 ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the Company and the Investor and their respective
successors. Neither this Agreement nor any rights of the Investor or the Company hereunder may be assigned by either party to any other
Person.
Section
10.5 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the Company and the Investor and their respective
successors, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as set forth in Article
IX.
Section
10.6 TERMINATION. At any time after the effectiveness of the Registration Statement, the Company shall have the option to terminate
this Agreement for any reason or for no reason by delivering written notice (a “Company Termination Notice”) to the
Investor electing to terminate this Agreement without any liability whatsoever of any party to any other party under this Agreement (except
as set forth below). The Company Termination Notice shall not be effective until one business day after it has been received by the Investor,
provided that this Agreement cannot be terminated (i) while there is an outstanding Put Notice, the shares of Common Stock under which
have yet to be issued and (ii) the Company has not paid all amounts owed to the Investor pursuant to this Agreement. In addition, this
Agreement shall automatically terminate on the earlier of (i) the end of the Commitment Period; (ii) the date that the Company sells
and the Investor purchases the Maximum Commitment Amount; or (iii) the date that, pursuant to or within the meaning of any Bankruptcy
Law, the Company commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed for the
Company or for all or substantially all of its property or the Company makes a general assignment for the benefit of its creditors. At
any time following completion of the Investor’s due diligence pursuant to Section 6.5 or if the Company receives a final delisting
notice from the Principal Market or if the Common Stock fails to be listed on an Eligible Market, then the Investor may terminate its
obligations under this Agreement by written notice to the Company and may deem any outstanding Put Notice as withdrawn. Notwithstanding
the foregoing, in the event of termination of this Agreement, the provisions of Articles III, IV, V, VI, IX and the agreements
and covenants of the Company and the Investor set forth in this Article X shall survive the termination of this Agreement for
the maximum length of time allowed under applicable law.
-30-
Section
10.7 ENTIRE AGREEMENT. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding
of the Company and the Investor with respect to the matters covered herein and therein and supersede all prior agreements and understandings,
oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
Section
10.8 FEES AND EXPENSES. Except as expressly set forth in the Transaction Documents or any other writing to the contrary, each
party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement, except that the Company
shall reimburse the Investor for $30,000 of the Investor’s (or its affiliates’ or related parties’) due diligence and
legal costs, $25,000 of which the Company has previously paid as a non-refundable deposit prior to the Execution Date in connection with
the execution of the Term Sheet entered into between the Company and Square Gate Capital, LLC, and $5,000 of which shall be deducted
by the Investor from the Investment Amount due to the Company at the first Closing (or if the Investment Amount for the first Closing
is less than $5,000, from the Investment Amount due to the Company each subsequent Closing until paid in full). For the avoidance of
doubt, the Company shall pay all Transfer Agent fees, Clearing Costs, stamp taxes and other taxes and duties levied in connection with
any Securities.
Section
10.9 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which may be executed by less than all of
the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually executing such counterparts
and all of which together shall constitute one and the same instrument. This Agreement may be delivered to the other parties hereto by
e-mail of a copy of this Agreement bearing the signature of the parties so delivering this Agreement.
Section
10.10 SEVERABILITY. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided that such
severability shall be ineffective if it materially changes the economic benefit of this Agreement to any party.
Section
10.11 FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
Section
10.12 NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.
-31-
Section
10.13 EQUITABLE RELIEF. Each party acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to
the other by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, each party acknowledges that the remedy
at law for a breach of its obligations under this Agreement will be inadequate and agrees, in the event of a breach or threatened breach
by the such party of the provisions of this Agreement, that the other party shall be entitled, in addition to all other available remedies
at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing
any breach of this Agreement and to enforce specifically the terms and provisions hereof, without the necessity of showing economic loss
and without any bond or other security being required.
Section
10.14 TITLE AND SUBTITLES. The titles and subtitles used in this Agreement are used for the convenience of reference and are not
to be considered in construing or interpreting this Agreement.
Section
10.15 AMENDMENTS; WAIVERS. No provision of this Agreement may be amended or waived by the parties from and after the date that
is one (1) Trading Day immediately preceding the initial filing of the Registration Statement with the SEC. Subject to the immediately
preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument signed by both parties hereto
and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement
of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other
right, power or privilege
Section
10.16 PUBLICITY. The Company and the Investor shall consult with each other in issuing any press releases or otherwise making
public statements with respect to the transactions contemplated hereby and no party shall issue any such press release or otherwise make
any such public statement, other than as required by law, without the prior written consent of the other parties, which consent shall
not be unreasonably withheld or delayed, except that no prior consent shall be required if such disclosure is required by law, in which
such case the disclosing party shall provide the other party with prior notice of such public statement. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of the Investor without the prior written consent of the Investor, except to the extent
required by law. The Investor acknowledges that this Agreement and all or part of the Transaction Documents may be deemed to be “material
contracts,” as that term is defined by Item 601(b)(10) of Regulation S-K, and that the Company may therefore be required to file
such documents as exhibits to reports or registration statements filed under the Securities Act or the Exchange Act. The Investor further
agrees that the status of such documents and materials as material contracts shall be determined solely by the Company, in consultation
with its counsel.
**
Signature Page Follows **
-32-
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective officers thereunto duly authorized as
of the Execution Date.
MY SIZE, INC.
By:
Name:
Title:
SQUARE GATE CAPITAL MASTER FUND, LLC – SERIES 5
By:
Name:
Title:
**
Signature Page to Equity Purchase Agreement **
EXHIBIT
A
FORM
OF REGULAR PUT NOTICE
TO:
SQUARE GATE CAPITAL MASTER FUND, LLC – SERIES 5
DATE:__________________
We
refer to the Equity Purchase Agreement, dated August 5, 2026 (the “Agreement”), entered into by and between My Size,
Inc. and you. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have the same meaning when used herein.
We
hereby:
1)
Notify you that the Maximum Regular Put Amount as of the delivery of this Regular Put Notice is _________.
2)
Give you notice that:
[___]
we require you to purchase Put Shares in an amount equal to _________ , which is not in excess of the Maximum Regular Put Amount; OR
[__]
we request that you purchase an amount of Put Shares equal to _________ (the “Excess Purchase Amount”) which is in excess
of the Maximum Regular Put Amount
If
we have requested that you purchase in excess of the Maximum Regular Put Amount, prior to the opening of trading on the Trading Day immediately
following the delivery of this Put Notice please confirm if you will purchase the Maximum Regular Put Amount, the Excess Purchase Amount
or some amount of Put Shares between the Maximum Regular Put Amount and the Excess Purchase Amount and what amount. Failure to so confirm
will be deemed confirmation that you elect to purchase the Maximum Regular Put Amount.
3)
Certify that, as of the date hereof, the conditions set forth in Section 7.1 of the Agreement are satisfied.
MY SIZE, INC.
By:
Name:
Title:
EXHIBIT
B
FORM
OF INTRADAY PUT NOTICE
TO:
SQUARE GATE CAPITAL MASTER FUND, LLC – SERIES 5
DATE:
_________ (the “Trading Day”)
We
refer to the Equity Purchase Agreement, dated August 5, 2026 (as amended, the “Agreement”), entered into by and between
My Size, Inc. and you. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have the same meaning when
used herein.
We
hereby:
1)
Notify you that the Maximum Intraday Put Amount as of the delivery of this Intraday Put Notice is _________.
2)
Request that you accept this Intraday Put Notice pursuant to the terms of Section 2.2(a) of the Agreement; specifically, we
request that,
prior to the close of this Trading Day, you purchase Intraday Put Shares in an amount equal to _________, to
be issued and priced in accordance with the provisions of Section 2.2 of the Agreement.
This
is the ___ Intraday Put Notice submitted to you on this Trading Day, and with respect to all Put Notices, including all Intraday Put
Notices, previously submitted by us and accepted by you on this Trading Day, the Transfer Agent has delivered email confirmation to the
Investor’s broker, with the Investor copied on such email, that the Transfer Agent has posted DWAC for the associated Put Shares,
including Intraday Put Shares.
We
hereby certify that, as of the date hereof, the conditions set forth in Section 7.1 of the Agreement are satisfied. We will deliver
an executed Transfer Agent Instruction Letter to the Transfer Agent promptly upon our receipt of your acceptance of this Intraday Put
Notice, and we hereby confirm that the Company has no knowledge of any fact or circumstance that would prevent the Transfer Agent from
complying with such Transfer Agent Instruction Letter, once delivered.
If
we do not receive your acceptance of this Intraday Put Notice within 30 minutes of your receipt hereof, this Intraday Put Notice shall
be deemed rejected and of no further force or effect.
MY SIZE, INC.
By:
Name:
Title:
ACCEPTED:
SQUARE GATE CAPITAL MASTER FUND, LLC – SERIES 5
By:
Name:
Title:
EXHIBIT
C
FORM
OF OFFICER’S CERTIFICATE
OF
MY
SIZE, INC.
Pursuant
to Section 7.1(j) of that certain equity purchase agreement, dated August 5, 2026 (the “Agreement”), by and
between My Size, Inc. (the “Company”) and Square Gate Capital Master Fund, LLC – Series 5 (the “Investor”),
the undersigned, in his capacity as Chief Financial Officer of the Company, and not in his individual capacity, hereby certifies, as
of the date hereof (such date, the “Condition Satisfaction Date”), the following:
1.
The representations and warranties of the Company contained in the Agreement are true and correct in all material respects as of the
Condition Satisfaction Date as though made on the Condition Satisfaction Date (except for representations and warranties specifically
made as of a particular date) with respect to all periods, and as to all events and circumstances occurring or existing to and including
the Condition Satisfaction Date, except for any conditions which have temporarily caused any representations or warranties of the Company
set forth in the Agreement to be incorrect and which have been corrected with no continuing impairment to the Company or the Investor;
and
2.
All of the conditions precedent to the obligation of the Investor to purchase Put Shares set forth in the Agreement, including but not
limited to Section 7.1 of the Agreement, have been satisfied as of the Condition Satisfaction Date.
Capitalized
terms used herein shall have the meanings set forth in the Agreement unless otherwise defined herein.
IN
WITNESS WHEREOF, the undersigned has hereunto affixed his hand as ____________, 20__.
By:
Name:
Title:
EXHIBIT
D
FORM
OF TRANSFER AGENT INSTRUCTION LETTER
EXHIBIT
E
FORM
OF REGISTRATION RIGHTS AGREEMENT
EX-10.2
EX-10.2
Filename: ex10-2.htm · Sequence: 3
Exhibit
10.2
REGISTRATION
RIGHTS AGREEMENT
REGISTRATION
RIGHTS AGREEMENT (this “Agreement”), dated as of August 5, 2026 (the “Execution Date”), is entered
into by and between My Size, Inc., a corporation incorporated in the State of Delaware (the “Company”), and Square
Gate Capital Master Fund, LLC - Series 5, a series limited liability company organized in the State of Delaware (together with its permitted
assigns, the “Buyer”). Capitalized terms used herein and not otherwise defined herein shall have the respective meanings
set forth in that certain Equity Purchase Agreement by and between the parties hereto, dated as of the Execution Date (as amended, restated,
supplemented or otherwise modified from time to time, the “Purchase Agreement”).
WHEREAS:
The
Company has agreed, upon the terms and subject to the conditions of the Purchase Agreement, to sell to the Buyer up to Ten Million Dollars
($10,000,000.00) of Put Shares, and to induce the Buyer to enter into the Purchase Agreement, the Company has agreed to provide certain
registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor
statute (collectively, the “Securities Act”), and applicable state securities laws.
NOW,
THEREFORE, in consideration of the promises and the mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the Buyer hereby agree as follows:
1.
DEFINITIONS.
As
used in this Agreement, the following terms shall have the following meanings:
a.
“Investor” means the Buyer, any transferee or assignee thereof to whom the Buyer assigns its rights under this Agreement
in accordance with Section 9 and who agrees to become bound by the provisions of this Agreement, and any transferee or assignee
thereof to whom a transferee or assignee assigns its rights under this Agreement in accordance with Section 9 and who agrees to
become bound by the provisions of this Agreement.
b.
“Person” means any individual or entity including but not limited to any corporation, a limited liability company,
an association, a partnership, an organization, a business, an individual, a governmental or political subdivision thereof or a governmental
agency.
c.
“Register,” “Registered,” and “Registration” refer to a registration effected
by preparing and filing one or more registration statements of the Company in compliance with the Securities Act and/or pursuant to Rule
415 under the Securities Act or any successor rule providing for the offering of securities on a continuous basis (“Rule 415”),
and the declaration or ordering of effectiveness of such registration statement(s) by the United States Securities and Exchange Commission
(the “SEC”).
d.
“Registrable Securities” means all of the (i) Commitment Shares, (ii) Put Shares which have been, or which may, from
time to time be issued, including without limitation all of the shares of Common Stock which have been issued or will be issued to the
Investor under the Purchase Agreement (without regard to any limitation or restriction on purchases), and (iii) any and all shares of
capital stock issued or issuable with respect to the Put Shares and Commitment Shares as a result of any stock split, stock dividend,
recapitalization, exchange or similar event or otherwise, without regard to any limitation on purchases under the Purchase Agreement.
e.
“Registration Statement” means one or more registration statements of the Company on Form S-1 covering the resale
of the Registrable Securities including the Initial Registration Statement and any New Registration Statement or Other Registration Statement
(each as defined herein).
2.
REGISTRATION.
a.
Mandatory Registration. The Company shall, use its best efforts to file with the SEC within thirty (30) calendar days after the
Execution Date (the “Filing Deadline”), an initial Registration Statement on Form S-1 covering the maximum number
of Registrable Securities as shall be permitted to be included thereon in accordance with applicable SEC rules, regulations and interpretations
so as to permit the resale of such Registrable Securities by the Investor, including but not limited to under Rule 415 under the Securities
Act at then prevailing market prices (and not fixed prices) (the “Initial Registration Statement”). The Initial Registration
Statement shall register only Registrable Securities. The Company shall use its best efforts to have the Initial Registration Statement
and any amendment thereto declared effective by the SEC within 30 days after the Filing Deadline. For the avoidance of doubt, if, due
to a shutdown or suspension of operations of the U.S. federal government or the SEC, the Initial Registration Statement cannot be declared
effective, the Company shall not be deemed to be in breach of this Agreement for failure to cause such Initial Registration Statement
to be declared effective during such period.
b.
Rule 424 Prospectus. In addition to the Initial Registration Statement, the Company shall, as required by applicable securities
regulations, from time to time file with the SEC, pursuant to Rule 424 promulgated under the Securities Act, such prospectuses and prospectus
supplements, if any, to be used in connection with sales of the Registrable Securities under each Registration Statement. The Investor
and its counsel shall have a reasonable opportunity to review and comment upon such prospectuses prior to its filing with the SEC, and
the Company shall give due consideration to all such comments. The Investor shall use its commercially reasonable efforts to comment
upon any prospectus within two (2) business days from the date the Investor receives the pre-filing version of such prospectus.
c.
Sufficient Number of Shares Registered. In the event the number of shares available under the Initial Registration Statement is
insufficient to cover all of the Registrable Securities, the Company shall amend the Initial Registration Statement or file a new Registration
Statement (a “New Registration Statement”), so as to cover all of such Registrable Securities (subject to the limitations
set forth in Section 2(e)) as soon as practicable, subject to any limits that may be imposed by the SEC pursuant to Rule 415 under
the Securities Act, including any position of the staff of the SEC (the “Staff”) with respect to the date on which
the Staff will permit such additional Registration Statement(s) to be filed with the SEC and the rules and regulations of the SEC and
any Principal Market (“Regulatory Restrictions”). The Company shall use its commercially reasonable efforts to cause
such amendment and/or New Registration Statement to become effective as soon as practicable following the filing thereof. In the event
that any of the Registrable Securities are not included in the Initial Registration Statement, or have not been included in any New Registration
Statement, and the Company files any other registration statement under the Securities Act (other than on Form S-4, Form S-8, or with
respect to other employee related plans or rights offerings) (an “Other Registration Statement”), then the Company
shall, to the extent permitted under the Regulatory Restrictions, include in such Other Registration Statement first all of such Registrable
Securities that have not been previously Registered, and second any other securities the Company wishes to include in such Other Registration
Statement. The Company agrees that, subject to the exceptions and limitations set forth in the immediately preceding sentence, it shall
not file any such Other Registration Statement unless all of the Registrable Securities have been included in such Other Registration
Statement or otherwise have been Registered for resale as described above.
d.
Effectiveness. The Investor and its counsel shall have a reasonable opportunity to review and comment upon any Registration Statement
and any amendment or supplement to such Registration Statement and any related prospectus prior to its filing with the SEC, and the Company
shall give due consideration to all reasonable comments. The Investor shall furnish all information reasonably requested by the Company
for inclusion therein. The Company shall use its commercially reasonable efforts to keep all Registration Statements effective, including
but not limited to pursuant to Rule 415 promulgated under the Securities Act and available for the resale by the Investor of all of the
Registrable Securities covered thereby at all times until the earlier of (i) the date as of which the Investor may sell all of the Registrable
Securities without any restrictions (including any restrictions under Rule 144 promulgated under the Securities Act) and (ii) the date
on which the Investor shall have sold all the Registrable Securities covered thereby and no Put Shares remain issuable under the Purchase
Agreement (the “Registration Period”). In the event that any Registration Statement filed hereunder is no longer effective
and Rule 144 is available for sales of the Registrable Securities, the Company shall provide an opinion upon request of the Investor
that the Investor may sell any such Registrable Securities held by the Investor pursuant to Rule 144 with all costs related to such opinion
to be borne by the Company. Each Registration Statement (including any amendments or supplements thereto and prospectuses contained therein)
shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary
to make the statements therein, in light of the circumstances in which they were made, not misleading.
e.
Offering. If the Staff or the SEC seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this
Agreement as constituting an offering of securities that does not permit such Registration Statement to become or remain effective and
be used for resales by the Investor under Rule 415 at then-prevailing market prices (and not fixed prices) by comment letter or otherwise,
or if after the filing of the Initial Registration Statement with the SEC pursuant to Section 2(a), the Company is otherwise required
by the Staff or the SEC to reduce the number of Registrable Securities included in such initial Registration Statement, then the Company
shall reduce the number of Registrable Securities to be included in such Initial Registration Statement (after having consulted the Investor
and its legal counsel as to the specific Registrable Securities to be removed therefrom) until such time as the Staff and the SEC shall
so permit such Registration Statement to become effective and be used as aforesaid. In the event of any reduction in Registrable Securities
pursuant to this paragraph, the Company shall file one or more New Registration Statements in accordance with Section 2(c) until
such time as all Registrable Securities have been included in Registration Statements that have been declared effective and the prospectus
contained therein is available for use by the Investor. Notwithstanding any provision herein or in the Purchase Agreement to the contrary,
the Company’s obligations to register Registrable Securities (and any related conditions to the Investor’s obligations) shall
be qualified as necessary to comport with any requirement of the SEC or the Staff as addressed in this Section 2(e).
3.
RELATED OBLIGATIONS.
With
respect to a Registration Statement and whenever any Registrable Securities are to be Registered pursuant to Section 2, including
on any Other Registration Statement, the Company shall use its commercially reasonable efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and, pursuant thereto, the Company shall have the following
obligations:
a.
The Company shall prepare and file with the SEC such amendments (including post-effective amendments on Form S-1) and supplements to
any Registration Statement and any Other Registration Statement and the prospectus used in connection with such Registration Statement
and Other Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be
necessary to keep the Registration Statement effective at all times during the Registration Period, and, during such period, comply with
the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company covered by the Registration
Statement or applicable Other Registration Statement until such time as all of such Registrable Securities shall have been disposed of
in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such registration statement.
b.
The Company shall permit the Investor to review and comment upon each Registration Statement or any Other Registration Statement and
all amendments and supplements thereto at least two (2) business days prior to their filing with the SEC and not file any document in
a form to which Investor reasonably objects. The Investor shall use its commercially reasonable efforts to comment upon the Registration
Statement or any Other Registration Statement and any amendments or supplements thereto within two (2) business days from the date the
Investor receives the final version thereof. The Company shall furnish to the Investor, without charge, and within three (3) business
days, any comments and/or any other correspondence from the SEC or the Staff to the Company or its representatives relating to the Registration
Statement or any Other Registration Statement. The Company shall respond to the SEC or the Staff, as applicable, regarding the resolution
of any such comments and/or correspondence as promptly as practicable and in any event within two weeks upon receipt thereof.
c.
Upon request of the Investor, the Company shall furnish to the Investor, (i) promptly after the same is prepared and filed with the SEC,
at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits, (ii) upon the effectiveness of any Registration Statement, a copy of the prospectus
included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as the Investor may
reasonably request) and (iii) such other documents, including copies of any preliminary or final prospectus, as the Investor may reasonably
request from time to time in order to facilitate the disposition of the Registrable Securities owned by the Investor. For the avoidance
of doubt, any filing available to the Investor via the SEC’s live EDGAR system shall be deemed “furnished to the Investor”
hereunder.
d.
The Company shall use its commercially reasonable efforts to (i) register and qualify the Registrable Securities covered by a Registration
Statement under such other securities or “blue sky” laws in such jurisdictions in the United States as required by applicable
law, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations
and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions
as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (y) subject itself to general taxation
in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify
the Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the
registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any
jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.
e.
As promptly as practicable after becoming aware of such event or facts, the Company shall notify the Investor in writing of the happening
of any event or existence of such facts as a result of which the prospectus included in any Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading, and promptly prepare a supplement or
amendment to such Registration Statement to correct such untrue statement or omission, and deliver a copy of such supplement or amendment
to the Investor (or such other number of copies as the Investor may reasonably request). The Company shall also promptly notify the Investor
in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and when a Registration Statement
or any post-effective amendment thereto has become effective (notification of such effectiveness shall be delivered to the Investor by
email or facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the SEC for amendments or supplements
to any Registration Statement or related prospectus or related information, and (iii) of the Company’s reasonable determination
that a post-effective amendment to a Registration Statement would be appropriate.
f.
The Company shall use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness
of any registration statement, or the suspension of the qualification of any Registrable Securities for sale in any jurisdiction and,
if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to
notify the Investor of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat
of any proceeding for such purpose. In addition, if the Company shall receive any comment letter from the SEC relating to any Registration
Statement under which Registrable Securities are Registered, the Company shall notify the Investor of the issuance of such order and
use its commercially reasonable efforts to address such comments in a manner satisfactory to the SEC.
g.
The Company shall use its commercially reasonable efforts to (i) cause all the Registrable Securities to be listed on each securities
exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable
Securities is then permitted under the rules of such exchange, or (ii) secure designation and quotation of all the Registrable Securities
on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section.
h.
The Company shall cooperate with the Investor to facilitate the timely preparation and delivery of DWAC Shares representing the Registrable
Securities to be offered pursuant to any Registration Statement. “DWAC Shares” means shares of Common Stock that are
(i) issued in electronic form, (ii) freely tradable and transferable and without restriction on resale and (iii) timely credited by the
Company to the Investor’s or its designee’s specified DWAC account with The Depository Trust Company (“DTC”)
under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the same function.
i.
The Company shall at all times maintain the services of its Transfer Agent and registrar with respect to its Common Stock.
j.
If reasonably requested by the Investor, the Company shall (i) immediately incorporate in a prospectus supplement or post-effective amendment
such information relating solely to the Investor as the Investor believes should be included therein relating to the sale and distribution
of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold,
the purchase price being paid therefor and any other terms of the offering of the Registrable Securities; (ii) make all required filings
of such prospectus supplement or post-effective amendment as soon as practicable upon notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement.
k.
The Company shall use its commercially reasonable efforts to cause the Registrable Securities covered by any Registration Statement to
be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of
such Registrable Securities.
l.
Within one (1) business day after any Registration Statement which includes Registrable Securities is declared effective by the SEC,
or any prospectus supplement or post-effective amendment including Registrable Securities is filed with the SEC, the Company shall deliver,
and shall cause legal counsel for the Company to deliver, to the Transfer Agent for such Registrable Securities (with copies to the Investor)
confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit A.
Thereafter, if requested by the Investor at any time, the Company shall require its counsel to deliver to the Investor a written confirmation
whether or not (i) the effectiveness of such Registration Statement has lapsed at any time for any reason (including, without limitation,
the issuance of a stop order) (ii) any comment letter has been issued by the SEC and (iii) whether or not the Registration Statement
is current and available to the Investor for sale of all of the Registrable Securities.
m.
The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by the Investor of Registrable Securities
pursuant to any Registration Statement.
4.
OBLIGATIONS OF THE INVESTOR.
a.
The Company shall notify the Investor in writing of the information the Company reasonably requires from the Investor in connection with
any Registration Statement hereunder. The Investor shall furnish to the Company such information regarding itself, the Registrable Securities
held by it and the intended method of disposition of the Registrable Securities held by it as shall be reasonably required to effect
the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company
may reasonably request. Notwithstanding the foregoing, the Registration Statement shall contain the “Selling Stockholder”
and “Plan of Distribution” sections, each in substantially the form provided to the Company by the Investor.
b.
The Investor agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing
of any Registration Statement hereunder and responding to the comments and queries from the SEC in connection therewith.
c.
The Investor agrees that, upon receipt of any notice from the Company of the happening of any event or existence of facts of the kind
described in Section 3(f) or the first sentence of Section 3(e), the Investor will immediately discontinue disposition
of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until withdrawal of a stop order
contemplated by Section 3(f) or the Investor’s receipt of the copies of the supplemented or amended prospectus contemplated
by Section 3(e). Notwithstanding anything to the contrary, the Company shall cause its Transfer Agent to promptly issue DWAC Shares
in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities with respect to which an
Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of
any event of the kind described in Section 3(f) or the first sentence of Section 3(e) and for which the Investor has not
yet settled.
5.
EXPENSES OF REGISTRATION.
All
reasonable expenses, other than sales or brokerage commissions, incurred in connection with registrations, filings or qualifications
pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers
and accounting fees, and fees and disbursements of counsel for the Company (but not counsel for the Investor), shall be paid by the Company.
6.
INDEMNIFICATION.
a.
To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, each Person,
if any, who controls or is under common control with the Investor, the members, the directors, officers, partners, employees, agents,
representatives of the Investor and each Person, if any, who is an “affiliate” of the Investor within the meaning of the
Securities Act or the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (each, an “Indemnified
Person”), against any losses, claims, damages, liabilities, judgments, fines, penalties, charges, costs, attorneys’ fees,
amounts paid in settlement or expenses, joint or several, (collectively, “Claims”) incurred in investigating, preparing
or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an Indemnified
Person is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such
Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a Registration Statement, any Other Registration Statement or any post-effective
amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue
sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”), or the omission
or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
(ii) any untrue statement or alleged untrue statement of a material fact contained in the final prospectus (as amended or supplemented,
if the Company files any amendment thereof or supplement thereto with the SEC) in which Registrable Securities are offered or the omission
or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under
which the statements therein were made, not misleading, (iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating
to the offer or sale of the Registrable Securities pursuant to a Registration Statement or any Other Registration Statement or (iv) any
material violation by the Company of this Agreement (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”).
The Company shall reimburse each Indemnified Person promptly as such expenses are incurred and are due and payable, for any reasonable
legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding
anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to
a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon and in conformity with information
about the Investor furnished in writing to the Company by such Indemnified Person expressly for use in connection with the preparation
of a Registration Statement, any Other Registration Statement or any such amendment thereof or supplement thereto, if such prospectus
was timely made available by the Company pursuant to Section 3(c) or Section 3(e); (ii) with respect to any superseded
prospectus, shall not inure to the benefit of any such person from whom the person asserting any such Claim purchased the Registrable
Securities that are the subject thereof (or to the benefit of any person controlling such person) if the untrue statement or omission
of material fact contained in the superseded prospectus was corrected in the revised prospectus, as then amended or supplemented, if
such revised prospectus was timely made available by the Company pursuant to Section 3(c) or Section 3(e), and the Indemnified
Person was promptly advised in writing not to use the incorrect prospectus prior to the use giving rise to a violation and such Indemnified
Person, notwithstanding such advice, used it; (iii) shall not be available to the extent such Claim is based on a failure of the Investor
to deliver or to cause to be delivered the prospectus made available by the Company, if such prospectus was timely made available by
the Company pursuant to Section 3(c) or Section 3(e); and (iv) shall not cover Violations caused by a material breach of
the Indemnified Person’s representations, warranties or covenants under the Transaction Documents, any violations by the Indemnified
Person’s violation of state or federal securities laws or any conduct by the Indemnified Person that constitutes fraud, gross negligence
or willful misconduct (as determined by a final non-appealable judgment of court having jurisdiction over such matter). Such indemnity
shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Investor pursuant to Section 9.
b.
Promptly after receipt by an Indemnified Person under this Section 6 of notice of the commencement of any action or proceeding
by a third party, which shall be deemed to include any claim by a shareholder of the Company (including any governmental action or proceeding),
involving a Claim, such Indemnified Person shall, if a Claim in respect thereof is to be made against the Company under this Section
6, deliver to the Company a written notice of the commencement thereof, and the Company shall have the right to participate in, and,
to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory to the Company and
to the Indemnified Person; provided, however, that an Indemnified Person shall have the right to retain its own counsel with the fees
and expenses to be paid by the Company. The Indemnified Person shall reasonably cooperate with the Company in connection with any negotiation
or defense of any such action or third party Claim by the Company and shall furnish to the Company all information reasonably available
to the Indemnified Person which relates to such action or third party Claim. The indemnifying party shall keep the Indemnified Person
fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. The Company shall not
be liable for any settlement of any such third party action, Claim or proceeding effectuated without its written consent, provided, however,
that the Company shall not unreasonably withhold, delay or condition its consent. The Company shall not, without the consent of the Indemnified
Person, consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Person of a release from all liability in respect to such third
party Claim or litigation. Following indemnification as provided for hereunder, the Company shall be subrogated to all rights of the
Indemnified Person with respect to all third parties, firms or corporations relating to the matter for which indemnification has been
made. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not
relieve the Company of any liability to the Indemnified Person under this Section 6, except to the extent that the Company is
prejudiced in its ability to defend such action. An indemnifying party’s obligations under this Section 6 shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior written consent of the indemnifying party, which consent
shall not be unreasonably withheld, delayed, denied, or conditioned.
c.
The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, as and when bills are received or Indemnified Damages are incurred.
d.
The indemnity agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Person
against the Company or others, and (ii) any liabilities the Company may be subject to pursuant to the law.
7.
CONTRIBUTION.
To
the extent any indemnification by the Company is prohibited or limited by law, the Company agrees to make the maximum contribution with
respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law.
8.
REPORTS AND DISCLOSURE UNDER THE SECURITIES ACTS.
With
a view to making available to the Investor the benefits of Rule 144 promulgated under the Securities Act or any other similar rule or
regulation of the SEC that may at any time permit the Investor to sell securities of the Company to the public without registration (“Rule
144”), the Company agrees, at the Company’s sole expense, to:
a.
make and keep “current public information” available, as such term is understood and defined in Rule 144;
b.
file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange
Act;
c.
furnish to the Investor so long as the Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company
that it has complied with the reporting and or disclosure provisions of Rule 144, the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested to permit the Investor to sell such securities pursuant to Rule 144 without registration;
and
d.
take such additional action as is reasonably requested by the Investor to enable the Investor to sell the Registrable Securities pursuant
to Rule 144, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions
to the Company’s Transfer Agent as may be requested from time to time by the Investor at the Company’s expense and otherwise
fully cooperate with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144.
The
Company agrees that damages may be an inadequate remedy for any breach of the terms and provisions of this Section 8 and that
Investor shall, whether or not it is pursuing any remedies at law, be entitled to equitable relief in the form of a preliminary or permanent
injunctions, without having to post any bond or other security, upon any breach or threatened breach of any such terms or provisions.
9.
ASSIGNMENT OF REGISTRATION RIGHTS.
The
Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Buyer. The Buyer,
or any Investor, may not assign its rights under this Agreement without the written consent of the Company other than to an affiliate
of such Investor.
10.
AMENDMENT OF REGISTRATION RIGHTS.
No
provision of this Agreement may be (i) amended other than by a written instrument signed by both parties hereto or (ii) waived other
than in a written instrument signed by the party against whom enforcement of such waiver is sought. Failure of any party to exercise
any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a
waiver thereof.
11.
MISCELLANEOUS.
a.
A Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from the registered owner of
such Registrable Securities.
b.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by email
(provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one
(1) business day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party
to receive the same. The addresses for such communications shall be:
If
to the Company:
My
Size, Inc.
HaNegev
4, POB 1206
Airport
City, Israel, 7010000
Attention:
Ronen Luzon, Chief Executive Officer
E-mail:
ronen@mysizeid.com
With
a copy (which shall not constitute notice) to:
Greenberg
Traurig, P.A.
One
Azrieli Center
Round
Tower 30th Floor
132
Menachem Begin Rd, Tel Aviv 6701101
Attention:
Gary Emmanuel
Email:
Gary.Emmanuel@gtlaw.com
If
to the Investor:
Square
Gate Capital Master Fund, LLC -Series 5
40 Wall Street
Floor
28, Suite 2728
New
York, NY 10005
E-mail:
eloc@squaregatecapital.com
Attention:
Christopher Perugini, Managing Partner
with
a copy to (that shall not constitute notice)
Sichenzia
Ross Ference Carmel LLP
1185 Avenue of the Americas, 31st Floor
New
York, NY 10036
E-mail:
rcarmel@srfc.law
Attention:
Ross David Carmel
or
at such other address and/or email address and/or to the attention of such other person as the recipient party has specified by written
notice given to each other party three (3) business days prior to the effectiveness of such change. Written confirmation of receipt (A)
given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s
email account containing the time, date, recipient email address, as applicable, and an image of the first page of such transmission
or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service, receipt by email
or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.
c.
All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal
laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New
York.
d.
Any disputes, claims, or controversies hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein
shall be referred to and resolved solely and exclusively by binding arbitration to be conducted before the Judicial Arbitration and Mediation
Service (“JAMS”), or its successor pursuant the expedited procedures set forth in the JAMS Comprehensive Arbitration
Rules and Procedures (the “Rules”), including Rules 16.1 and 16.2 of those Rules. The arbitration shall be held in
New York, New York, before a tribunal consisting of three (3) arbitrators each of whom will be selected in accordance with the “strike
and rank” methodology set forth in Rule 15. Either party to this Agreement may, without waiving any remedy under this Agreement,
seek from any federal or state court sitting in the Southern District of New York any interim or provisional relief that is necessary
to protect the rights or property of that party, pending the establishment of the arbitral tribunal. The costs and expenses of such arbitration
shall be paid by and be the sole responsibility of the Company, including but not limited to the Buyer’s attorneys’ fees
and each arbitrator’s fees. The arbitrators’ decision must set forth a reasoned basis for any award of damages or finding
of liability. The arbitrators’ decision and award will be made and delivered as soon as reasonably possible and in any case within
sixty (60) days’ following the conclusion of the arbitration hearing and shall be final and binding on the parties and may be entered
by any court having jurisdiction thereof.
e.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
f.
EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
g.
This Agreement and the Purchase Agreement constitute the entire agreement among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein
and therein. This Agreement and the Purchase Agreement supersede all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof and thereof.
h.
Subject to the requirements of Section 9, this Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of each of the parties hereto.
i.
The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
j.
This Agreement may be executed in identical counterparts, each of which shall be deemed an original but all of which shall constitute
one and the same agreement. This Agreement, once executed by a party, may be delivered to the other party hereto by facsimile transmission
or by e-mail in a “.pdf” format data file of a copy of this Agreement bearing the signature of the party so delivering this
Agreement.
k.
Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
l.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules
of strict construction will be applied against any party.
m.
This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns, and is not for
the benefit of, nor may any provision hereof be enforced by, any other Person.
[Signature
page follows.]
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Execution Date.
THE
COMPANY:
MY
SIZE, INC.
By:
Name:
Title:
BUYER:
SQUARE
GATE CAPITAL MASTER FUND, LLC – SERIES 5
By:
Name:
Title:
EXHIBIT
A
TO
REGISTRATION RIGHTS AGREEMENT
FORM
OF NOTICE OF EFFECTIVENESS OF REGISTRATION STATEMENT
[__________]
[___], 2026
Vstock
Transafer, LLC
18
Lafayette Place
Woodmere,
NY 11598
Email:
info@vstocktransfer.com
Re:
EFFECTIVENESS OF REGISTRATION STATEMENT
Ladies
and Gentlemen:
We
are counsel to My Size, Inc., a corporation incorporated in the State of Delaware (the “Company”), and have represented
the Company in connection with that certain Equity Purchase Agreement, dated as of August 5, 2026 (the “Purchase Agreement”),
entered into by and between the Company and Square Gate Capital Master Fund, LLC - Series 5 (the “Buyer”) pursuant
to which the Company has agreed to issue to the Buyer shares of common stock of the Company, par value $0.001 per share (the “Common
Stock”), in an amount up to Ten Million Dollars ($10,000,000.00),(the “Put Shares”), in accordance with
the terms of the Purchase Agreement. In connection with the transactions contemplated by the Purchase Agreement, the Company has registered
with the U.S. Securities & Exchange Commission the following shares of Common Stock:
(1)
_____Put Shares to be issued to the Buyer upon purchase from the Company by the Buyer from time to time in accordance with the Purchase
Agreement; and
(2)
________Commitment Shares which were issued to the Buyer pursuant to the Purchase Agreement.
Pursuant
to the Purchase Agreement, the Company also has entered into a Registration Rights Agreement, of even date with the Purchase Agreement
with the Buyer (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to
register the Put Shares and the Commitment Shares under the Securities Act of 1933, as amended (the “Securities Act”).
In connection with the Company’s obligations under the Equity Purchase Agreement and the Registration Rights Agreement, on [__________]
[ ], 2026, the Company filed a Registration Statement (File No. 333-[_________]) (the “Registration
Statement”) with the Securities and Exchange Commission (the “SEC”) relating to the resale of the Put Shares
and the Commitment Shares.
In
connection with the foregoing, we advise you that a member of the SEC’s staff has advised us by telephone that the SEC has entered
an order declaring the Registration Statement effective under the Securities Act at [ ] [A.M./P.M.] on [ ], 2026 and we
have no knowledge, after telephonic inquiry of a member of the SEC’s staff, that any stop order suspending its effectiveness has
been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and the Put Shares are available for
resale under the Securities Act pursuant to the Registration Statement and may be issued without any restrictive legend.
Very
truly yours,
[Company
Counsel]
By:
cc:
Square
Gate Capital Master Fund, LLC - Series 5
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