Form 8-K
8-K — Profusa, Inc.
Accession: 0001213900-26-040111
Filed: 2026-04-06
Period: 2026-04-02
CIK: 0001859807
SIC: 3841 (SURGICAL & MEDICAL INSTRUMENTS & APPARATUS)
Item: Entry into a Material Definitive Agreement
Item: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
Item: Unregistered Sales of Equity Securities
Item: Other Events
Item: Financial Statements and Exhibits
Documents
8-K — ea0285151-8k_profusa.htm (Primary)
EX-10.1 — AMENDMENT NO. 4, DATED AS OF APRIL 2, 2026, TO THE SECURITIES PURCHASE AGREEMENT, DATED AS OF FEBRUARY 11, 2025, AND THE PLEDGE AGREEMENT, DATED AS OF JULY 11, 2025 (ea028515101ex10-1.htm)
EX-10.2 — SENIOR SECURED CONVERTIBLE PROMISSORY NOTE, DATED APRIL 2, 2026, ISSUED TO ASCENT PARTNERS FUND LLC (ea028515101ex10-2.htm)
EX-99.1 — NON-BINDING LETTER OF INTENT, DATED MARCH 31, 2026 (AS AMENDED AND RESTATED ON APRIL 3, 2026), BY AND BETWEEN PROFUSA, INC. AND BIO INSIGHTS LLC (ea028515101ex99-1.htm)
EX-99.2 — PRESS RELEASE (ea028515101ex99-2.htm)
GRAPHIC (ea028515101ex10-1img1.jpg)
GRAPHIC (ea028515101ex10-1img2.jpg)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — CURRENT REPORT
8-K (Primary)
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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):
April 2, 2026
PROFUSA, INC.
(Exact name of registrant as specified in its charter)
Delaware
001-41177
86-3437271
(State or other jurisdiction
of incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
626 Bancroft Way, Suite A
Berkeley, CA 94710
(Address of principal executive offices, including
zip code)
Registrant’s telephone number, including
area code: (925) 997-6925
Not Applicable
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
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, par value $0.0001 per share
PFSA
The Nasdaq Stock Market LLC
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.
Amendment No. 4 to Securities Purchase Agreement and Pledge Agreement
As previously disclosed, Profusa, Inc., a Delaware corporation (the
“Company”)entered into the (A) the Securities Purchase Agreement, dated as of February 11, 2025 (as previously amended,
the “Purchase Agreement”), by and among the Company, Ascent Partners Fund LLC, a Delaware limited liability company (“Ascent”),
the other purchasers from time to time party thereto (the “Purchasers”), and Ascent, as collateral agent for the purchaser
parties (the “Collateral Agent”), and (B) that certain Pledge Agreement, dated as of July 11, 2025 (as previously amended,
the “Pledge Agreement”), among the Company, Ben Hwang, William McMillan, Northview Sponsor I, LLC, and the Collateral Agent.
On April 2, 2026, Profusa, Inc., a Delaware corporation (the “Company”),
entered into Amendment No. 4 (“Amendment No. 4”) to the Purchase Agreement and Pledge Agreement. Pursuant to Amendment No.
4, the Company may request to sell additional convertible promissory notes (the “Additional Notes”) having an aggregate principal
amount not to exceed $12,222,222 and for a purchase price that reflects at least a 10% original issue discount, by delivering to the Collateral
Agent a notice specifying the aggregate initial principal amount requested, the purchase price and the proposed additional closing date.
Amendment No. 4 also amends the Pledge Agreement to, among other things,
replace the definition of “Release Condition” in Section 7.10 of the Pledge Agreement to mean payment in full, whether in
cash or by conversion, of $1,666,666.66 in aggregate principal amount of Notes issued in the Additional Closings expected to occur on
and shortly following the effective date of Amendment No. 4 (the “Amendment Effective Date”).
Additionally, the Company and Ascent acknowledged that any mandatory
prepayment amounts received by Ascent pursuant to the Notes shall first be allocated towards obligations owing in respect of the Additional
Notes to be issued on and shortly following the Amendment Effective Date, and then towards the secured convertible promissory notes issued
pursuant to the Purchase Agreement on July 11, 2025, and September 30, 2025, respectively.
As consideration for Ascent and the Collateral Agent agreeing to execute
Amendment No. 4 and to participate in the Additional Closing expected to occur on April 2, 2026, the Company agreed to issue to Ascent,
not later than five calendar days following the Amendment Effective Date, a warrant to purchase 1,111,111 shares of the Company’s
Common Stock (the “Warrant”) at an initial exercise price of $0.50 per share, in form reasonably acceptable to Ascent and
in the standard form typically used by Ascent for transactions of this type. The Warrant is required to contain provisions providing anti-dilution
protection to the holder, a fundamental transaction provision and a cashless exercise provision.
In connection with the Additional Closing occurring on April 2, 2026,
the Company issued to Ascent a senior secured convertible promissory note in the aggregate principal amount of $555,555.55 (the “Third
Tranche Note”). The Third Tranche Note matures on April 2, 2027, and accrues interest at a rate of 12% per annum. The Third Tranche
Note is convertible at the option of the holder into shares of the Company’s Common Stock at a conversion price of $0.50 per share,
subject to adjustment and a floor price. The Third Tranche Note provides for mandatory prepayments upon subsequent offerings equal to
50% of the net proceeds. Cash payments of principal under the Third Tranche Note are subject to a cash payment fee of 5%. The Third Tranche
Note is secured by the collateral described in the Purchase Agreement and the related security documents. The Third Tranche Note was issued
with original issue discount.
1
The Notes and the Warrant were offered and sold in a private placement
in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities
Act”), and Rule 506 of Regulation D promulgated thereunder. The securities have not been registered under the Securities Act and
may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
The foregoing descriptions of Amendment No. 4, the Third Tranche
Note and the Warrant do not purport to be complete and are qualified in their entirety by reference to the full text of such
documents. A copy of the Third Tranche Note is filed as an exhibit hereto and is incorporated herein by reference. A copy of the
Warrant will be filed in an Amendment to this Current Report on Form 8-K following the issuance thereof.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 of this Current Report on Form
8-K regarding the Third Tranche Note is incorporated herein by reference.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 of this Current Report on Form
8-K regarding the issuance of the Third Tranche Note and the Warrant is incorporated herein by reference. The Third Tranche Note is convertible
into shares of the Company’s Common Stock and the Warrant is exercisable for shares of the Company’s Common Stock, in each
case as described in Item 1.01 above. The issuance of the Third Tranche Note and the Warrant, and the shares of Common Stock issuable
upon conversion or exercise thereof, were not registered under the Securities Act, in reliance on the exemption from registration provided
by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
Item 8.01. Other Events.
Letter of Intent Relating to Proposed Acquisition of Bio Insights
PanOmics Assets
On March 31, 2026, the Company entered into a non-binding letter of
intent (as amended and restated on April 3, 2026, the “LOI”) with Bio Insights LLC (“Bio Insights”), pursuant
to which the Company proposes to acquire certain assets of Bio Insights, including the PanOmics assay and related know-how (the “PanOmics
Assets”), for aggregate consideration of $30,000,000 (the “Proposed Transaction”). The Proposed Transaction is conditioned
upon: (i) the negotiation and execution of a definitive asset acquisition agreement; (ii) the satisfaction of customary closing conditions;
and (iii) the receipt of all required stockholder approvals. The LOI is non-binding except with respect to certain provisions relating
to confidentiality, exclusivity, termination and governing law.
Profusa believes that the acquisition of the Panomic DX next-generation
sequencing (NGS) assets introduces a near-term revenue opportunity aligned with recent CMS reimbursement guidance requiring NGS testing
in oncology. Panomic DX offers the potential for immediate commercial traction and reimbursement-backed cash flow potential. Moreover,
the Company believes that the combination of real-time biochemical monitoring and genomic diagnostics will strengthen the Company’s
ability to deliver a fully integrated oncology solution. The PanOmics Assets enable a marker panel that has been designed for broad utilization
across several important cancers as well as common metabolic disease states. include pancreatic cancer, fatty liver cancer, Esophageal
Cancer and Thyroid Cancer. The PanOmics marker panel is designed to identify sequence variations and copy number expression conferring
hereditary risk, profile somatic tumor mutations to guide therapeutic selection, support liquid biopsy monitoring via circulating tumor
DNA, and predict malignant progression in patients.
2
The Centers for Medicare and Medicaid Services (“CMS”)
recently announced that next-generation sequencing testing is necessary for reimbursement in the relevant oncology indications —
a policy determination that the Company believes substantially de-risks the commercial pathway for PanOmic DX and validates the strategic
logic of the planned asset acquisition. With reimbursement now tied to the use of next-generation sequencing, PanOmic DX is positioned
to generate meaningful near-term revenue while LumeeOxygen advances through clinical validation, thereby meaningfully diversifying Profusa’s
commercial profile at precisely the right moment.
Under the terms of the LOI, the aggregate purchase price of $30,000,000
is to be satisfied entirely through the issuance of equity securities of the Company, consisting of: (a) 460,000 shares of Common Stock
(limited to 19.99% of total shares outstanding) to be issued at the closing; and (b) shares of a new series of preferred stock of the
Company (the “Preferred Stock”), which shall be non-voting and convertible into 59,540,000 shares of Common Stock (the “Conversion
Shares”), with such conversion right exercisable one year following the date of issuance of the Preferred Stock. The number of shares
to be issued will be calculated based on the closing transaction price reported by Nasdaq on the trading day preceding the closing. The
Conversion Shares will be subject to registration rights and a Lock-Up Agreement to be executed by Bio Insights in the form attached as
an exhibit to the LOI (the “Lock-Up Agreement”). Pursuant to the Lock-Up Agreement, the Conversion Shares will be subject
to a seven-year lock-up period with annual releases of one-seventh of the Conversion Shares each year, subject to a carve-out permitting
Bio Insights to sell such number of Conversion Shares as may be necessary to fund tax liabilities arising from the transaction.
In connection with the Proposed Transaction, Bio Insights will be entitled
to receive royalty payments equal to 3% of net revenue, payable annually following the completion of audited full-year financial statements.
The Company has agreed to make best efforts to conclude an equity financing of $10,000,000 contemporaneously with or within 30 days following
the closing of the Proposed Transaction, and to allocate a minimum of 15% of the net proceeds of such financing and future financings,
up to $2,000,000 in aggregate, for consulting work and reagent costs related to the PanOmics assay’s analytical and clinical validation
and capital equipment needs.
In connection with the closing of the Proposed Transaction, the Company
will issue to management shares equal to 12% of the fully diluted shares outstanding immediately following the transaction and related
fundraising, for retention of the Company’s Chief Executive Officer and Chief Financial Officer, reduced by any RSUs or options
issued to management between the date of the LOI and the announcement of the Proposed Transaction. All existing employment and severance
arrangements for the Company’s CEO and CFO are to be reviewed by Bio Insights prior to execution of the definitive documentation,
with any changes or amendments to be mutually agreed to ensure proper retention incentives are in place for a period of two years.
The closing of the Proposed Transaction is subject to certain conditions,
including, among others: (a) the accuracy of representations and warranties of Bio Insights; (b) compliance with covenants; (c) the absence
of any material adverse effect; (d) receipt of all governmental and third-party consents; (e) completion of legal, financial, tax and
commercial due diligence to the Company’s satisfaction; (f) physical delivery of clinical samples to the Company’s designated
facility; and (g) receipt of a legal opinion from Bio Insights’ counsel. The Company is required to hold a shareholder meeting for
the purpose of voting upon the issuance of the securities contemplated by the Proposed Transaction prior to June 30, 2026, and to use
its reasonable best efforts to solicit proxies in favor of such approval.
3
Bio Insights shall have the right to nominate one independent Board
member for consideration by stockholders at the next regularly scheduled annual meeting of stockholders of Profusa. Such nominee shall
be required to be presented to stockholders unless he/she is approved by a majority of the members of the Nominating and Corporate Governance
Committee and a majority of the members of the Profusa Board of Directors. It is contemplated that such nominee would replace a Board
member whose term is expiring. Profusa shall not be required to enlarge the Board to accommodate the new nominee.
In connection therewith, Bio Insights is required to execute a Voting
Agreement in the form attached as an exhibit to the LOI (the “Voting Agreement”), pursuant to which Bio Insights agrees to
vote all shares of Common Stock beneficially owned by it in favor of stockholder proposals recommended by the board of directors of the
Company.
During the term of the LOI (the “Exclusivity Period”),
Bio Insights and its affiliates and representatives are prohibited from soliciting, initiating or encouraging any inquiry or proposal,
engaging in discussions or negotiations, or providing non-public information to any third party relating to any acquisition, sale of equity
or assets, or similar transaction. The LOI will terminate automatically upon the earlier of the execution of definitive documentation
or 5:00 p.m., Eastern time, on May 1, 2026, unless extended by mutual agreement. The parties have agreed to use good faith, commercially
reasonable efforts to negotiate and execute a definitive agreement within 30 days of the date of the LOI, subject to automatic extension
for an additional 30 days if the parties are actively negotiating in good faith.
The foregoing description of the LOI does not purport to be complete
and is qualified in its entirety by reference to the full text of the LOI, a copy of which is filed as Exhibit 99.1 hereto and is incorporated
herein by reference.
On April 6, 2026, the Company issued a press release announcing its
entry into the LOI. A copy of the press release is filed as Exhibit 99.2 hereto and is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
Exhibit
Description
10.1
Amendment No. 4, dated as of April 2, 2026, to the Securities Purchase Agreement, dated as of February 11, 2025, and the Pledge Agreement, dated as of July 11, 2025
10.2
Senior Secured Convertible Promissory Note, dated April 2, 2026, issued to Ascent Partners Fund LLC
99.1
Non-Binding Letter of Intent, dated March 31, 2026 (as amended and restated on April 3, 2026), by and between Profusa, Inc. and Bio Insights LLC
99.2
Press Release
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
4
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
April 6, 2026
Profusa, Inc.
By:
/s/ Ben Hwang
Name:
Ben Hwang
Title:
Chief Executive Officer
5
EX-10.1 — AMENDMENT NO. 4, DATED AS OF APRIL 2, 2026, TO THE SECURITIES PURCHASE AGREEMENT, DATED AS OF FEBRUARY 11, 2025, AND THE PLEDGE AGREEMENT, DATED AS OF JULY 11, 2025
EX-10.1
Filename: ea028515101ex10-1.htm · Sequence: 2
Exhibit 10.1
19505 Biscayne Blvd. • Suite
2350 • Aventura, FL 33180 • legal@ascentpartnersllc.com
To:
Profusa, Inc.
626 Bancroft Way, Suite A
Berkeley, CA
Attention: Fred Knechtel,
CFO
April 2, 2026
Re: Amendment No. 4
Dear Fred:
Reference is made to (A) the Securities Purchase
Agreement, dated as of February 11, 2025 (as modified to the date hereof, the “Purchase Agreement”), by and among Profusa,
Inc., a Delaware corporation (together with its successors and permitted assigns, the “Company”), Ascent Partners Fund
LLC, a Delaware limited liability company (“Ascent”) and the other Purchasers from time to time party thereto and Ascent,
as collateral agent for the Purchaser Parties, as defined therein (together with its successors and permitted assigns, the “Collateral
Agent”), and (B) that certain Pledge Agreement, dated as of July 11, 2025 (as modified to the date hereof, the “Pledge
Agreement”), among the Company, Ben Hwang, William McMillan Northview Sponsor I, LLC, and the Collateral Agent.
Subject to the terms and conditions set forth
herein, and effective on the date hereof (the “Amendment Effective Date”), the following Transaction Documents are
hereby amended as follows:
Purchase Agreement
· Section 2.1 “Closings” of the Purchase Agreement is hereby amended and restated to read in
its entirety as follows:
“(a) Purchase
(i) Initial Closing. Each of the parties to the Purchase Agreement hereby acknowledge that the Initial
Closing Date occurred on July 11, 2025, on which date the Company sold and Ascent Partners Fund LLC, as a Purchaser, purchased from the
Company, a Note in an aggregate principal amount of $10,000,000.00 (the “First Tranche”) for a Purchase Price of $9,000,000.00.
(ii) Second Closing. Each of the parties to the Purchase Agreement hereby acknowledge that a second
Closing Date occurred on September 30, 2025, on which date the Company sold and Ascent Partners Fund LLC, as a Purchaser, purchased from
the Company, a Note in an aggregate principal amount of $2,222,222.00 (the “Second Tranche”) for a Purchase Price of
$2,000,000.00.
(iii) Additional Closing. On a Trading Day that (A) is on or before the Additional Closing Deadline,
(B) follows the date on which the conditions set forth in Section 2.3(c) shall have been satisfied or duly waived and (C) is proposed
by the Company and reasonably acceptable to each Initial Purchaser (the “Additional Closing Date”), upon the terms and subject
to the conditions set forth herein, the Company may request to sell additional Notes (the “Additional Notes”) having an aggregate
principal amount not to exceed $12,222,222.00 and for a Purchase Price that reflects at least the same original issue discount shown on
Schedule I for the Initial Notes, by delivering to the Collateral Agent a notice specifying the aggregate Initial Principal Amount requested,
the Purchase Price and the proposed Additional Closing Date, as well as certifying that the conditions set forth in Section 2.3(c) (other
than the deliveries described in Section 2.2(c)) are satisfied (or duly waived) as of the date of such notice (the “Additional
Closing Notice”). The Collateral Agent shall forward such notice to each Purchaser and, upon receipt, each such Purchaser may,
in its sole discretion, decide to purchase its Pro Rata Portion of the Additional Notes by notifying the Collateral Agent within five
(5) Business Days of receipt of such Additional Closing Notice and indicating in its notice whether such Purchaser is interested in purchasing
Additional Notes in excess of its allocated Pro Rata Portion if available and, if so, its maximum additional Purchase Price. Should some
Purchasers decline to purchase their Pro Rata Portion of the Additional Notes, the Collateral Agent may, in its sole discretion, reallocate
such Pro Rata Portion to Purchasers having indicated such an interest in purchasing Additional Notes in excess of their allocation. Should
there not be enough such Purchasers to purchase such Pro Rata Portion, the Collateral Agent may, in its sole discretion, offer such Pro
Rata Portion to third parties. Each such third party that agrees to purchase Additional Notes shall execute and deliver to the Collateral
Agent a Joinder Agreement and, whether or not such Joinder Agreement shall be acknowledged by the Company, shall thereafter for all purposes
be a party hereto and have the same rights, benefits and obligations as a Purchaser party hereto on the Additional Closing Date.
(iv) References to Certain Terms. Section 2.1(a)(iii) shall supersede and replace all provisions of
this Agreement relating to ‘Additional Closings’ and ‘Additional Notes.’ All references herein or in any other
Transaction Document to ‘Additional Closing,’ ‘Additional Notes,’ ‘Second Notes Purchase,’ or similar
terminology shall be construed consistently with the foregoing.”
· The definition of “Amendment Effective Date” in Section 1.1 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following:
“Amendment
Effective Date” has the meaning set forth in the first paragraph of Amendment No. 4 dated April 2, 2026.
· The definitions of “Additional Closing,” “Additional Closing Date,” “Additional
Closing Notice,” “Additional Closing Statement,” and “Additional Notes,” which were set forth in original
version of the Purchase Agreement, dated as of February 11, 2025, before such terms were deleted pursuant to the terms of that certain
Amendment No. 1 to Securities Purchase Agreement, dated as of August 25, 2025, are hereby reinserted into the Purchase Agreement in their
proper alphabetical order.
· The definition of “Note” in the Purchase Agreement in Section 1.1 of the Purchase Agreement
is hereby replaced in its entirety with the following:
“Note”
means each Senior Secured Convertible Promissory Note issued by the Company to an Initial Purchaser or an Additional Purchaser hereunder,
in the form attached hereto as Exhibit A-1, in the case of the Senior Secured Convertible Promissory Notes, issued to the
Purchaser in the First Tranche and the Second Tranche and in the case of any Senior Secured Convertible Promissory Note issued in an Additional
Closing, in the form attached hereto as Exhibit A-2, each with such changes satisfactory to such Purchaser and the Collateral Agent.
- 2 -
· Each of the Company and Ascent, as a Purchaser, acknowledge that pursuant to that certain Amendment No.
1 to Note, dated as of August 25, 2025, that certain Amendment No.2, dated as of December 22, 2025 and that certain Amendment No.3, dated
as of December 29, 2025, the original Senior Secured Convertible Promissory Note, issued to Ascent on July 11, 2025, was amended to conform
to the form attached to the Purchase Agreement as Exhibit A-1, effective as of Amendment Effective Date.
· Each of the Company and Ascent, as a Purchaser, acknowledge that pursuant to that certain Amendment No.2,
dated as of December 22, 2025 and that certain Amendment No.3, dated as of December 29, 2025, the original Senior Secured Convertible
Promissory Note, issued to Ascent on September 30, 2025, was amended to conform to the form attached to the Purchase Agreement as Exhibit
A-1, effective as of Amendment Effective Date.
· Exhibit A to the Purchase Agreement, which sets forth the form of Note, is hereby deleted in its entirety
and replaced with the forms of Note attached hereto as Exhibits “A-1” and “A-2”. Effective as of the Amendment
Effective Date, each reference in the Purchase Agreement and in any other Transaction Document to the term “Note” shall be
deemed to refer to the forms of Note attached hereto as Exhibits “A-1” and “A-2”.
· Schedule I to the Purchase Agreement is deleted in its entirety and replaced with Schedule I attached
to this Amendment No. 4 (this “Amendment No. 4”) as Exhibit “B”, which reflects the First Tranche and Second
Tranche and corresponding Purchase Prices set forth in Section 2.1 “Closings” above.
Pledge Agreement
· Section 1.1 of the Pledge Agreement is hereby amended by adding in its proper alphabetical order therein
the following definition:
“Amendment Effective Date”
means April 2, 2026.
· Section 2.2 of the Pledge Agreement is hereby deleted and replaced in its entirety with the following:
Each Grantor, as collateral security
for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations
under the Notes (the “Secured Obligations”), hereby mortgages, pledges and hypothecates to the Collateral Agent, as
agent for the Purchaser Parties, and grants to the Collateral Agent, as agent for the Purchaser Parties, a Lien on and security interest
in, all of its rights, title and interests in, to and under the Collateral of such Grantor.
· The final sentence of Section 7.10 of the Pledge Agreement is hereby deleted and replaced in its entirety
with the following:
The term “Release Condition”
means payment in full, whether in cash or by conversion, of the $1,666,666.66 in aggregate principal amount of Notes issued in the Additional
Closings expected to occur on and shortly following the Amendment Effective Date (for the avoidance of doubt, the Release Condition shall
be satisfied upon payment or conversion in full of such Note and shall not require payment or satisfaction of any other Obligations owing
to Ascent or any other Purchaser Party under the Transaction Documents).
- 3 -
· Each of Company, the Collateral Agent and Ben Hwang, William McMillan Northview Sponsor I, LLC, hereby
agree that the Pledge Agreement has not been terminated and the obligations of the Grantors thereunder remain outstanding and that the
Pledge Agreement as amended by the this Amendment No. 4 does not constitute a novation.
Further to the foregoing, the Company and Ascent
acknowledge that any Mandatory Prepayment Amounts received by Ascent pursuant to Section 2(b) of any Note shall first be allocated towards
Obligations owing in respect of the Notes to be issued on and shortly following the Amendment Effective Date and then towards the Notes
issued on July 11, 2025, and September 30, 2025, respectively.
This amendment is a Transaction Document and is
limited as written.
As of the date first written above, each reference
in the Purchase Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,”
or words of like import, and each reference in the other Transaction Documents to the Purchase Agreement (including, without limitation,
by means of words like “thereunder,” “thereof” and words of like import), shall refer to the Purchase
Agreement as modified thereby, and the provisions in this amendment amending the Purchase Agreement shall be read together and construed
as a single agreement with the Purchase Agreement. As of the date first written above, each reference in the Pledge Agreement and each
reference in the other Transaction Documents to the Pledge Agreement, shall refer to the Pledge Agreement as modified thereby, and the
provisions in this amendment amending the Pledge Agreement shall be read together and construed as a single agreement with the Pledge
Agreement. The execution, delivery and effectiveness of this amendment shall not, except as expressly provided herein, (A) waive
or modify any Default or Event of Default (whether or not existing on the date hereof), right, power or remedy under, or any other provision
of, any Transaction Document (in each case, other than any failure to comply with any provision of a Transaction Document amended hereby
that would not have been a failure if such Transaction Document had been amended as provided herein prior to the date hereof) or (B) commit
or otherwise obligate the Holder or the Collateral Agent to enter into or consider entering into any other consent, waiver or modification
of any Transaction Document or make any further purchases or other advances pursuant to any Transaction Documents. This amendment does
not constitute a novation of the Purchase Agreement or the Pledge Agreement.
Each Company Party hereby agrees that it continues
to guaranty, jointly and severally, absolutely, unconditionally and irrevocably, pursuant to the Guaranty, as primary obligor and not
merely as surety, the full and punctual payment when due of the Obligations of any other Company Party owing under the Transaction Document
as modified hereby (subject to the limitations set forth in the applicable Guaranty) and that the terms hereof shall not affect in any
way its obligations and liabilities, as expressly modified hereby, under the Transaction Documents. Each Company Party hereby reaffirms
(a) all of its obligations and liabilities under the Transaction Documents as modified hereby, and agrees that such obligations and
liabilities shall remain in full force and effect and (b) all Liens granted under the Transaction Documents, and agrees that such
Liens shall continue to secure the Obligations.
In further consideration for
the execution of this Amendment No.4 by the Holder and without limiting any rights or remedies the Holder or any of its Related Parties
may have, each Company Party hereby releases each of the Holder and each of its Related Parties (each a “Releasee”
and, collectively, the “Releasees”) against any and all claims and from any other Losses of any Company Party or any
Subsidiary thereof, whether or not relating to any Transaction Document, any obligation or liability owing thereunder, any asset of any
Company Party or any of their Subsidiaries or Affiliates, or any legal relationship that exists or may exist between any Releasee and
any Company Party or any Subsidiary of any Company Party. Each Company Party, each for itself and for its Subsidiaries, acknowledges and
agrees that it or its Subsidiaries may discover information later that could have affected materially their willingness to agree to the
release in this paragraph and that neither such possibility, which it took into account when executing this Amendment No. 4, nor such
discovery, as to which it expressly assumes the risk, shall affect the effectiveness of the release in this paragraph, and waives the
benefit of any legal requirement that may provide otherwise.
- 4 -
As a Transaction Document, this Amendment No.4
is subject to various interpretative and miscellaneous sections set forth in the Purchase Agreement and other Transaction Documents that
apply expressly to all Transaction Documents, located principally Article VI (Miscellaneous) of the Purchase Agreement (but also,
without limitation, in Section 4.14 (Indemnification) thereof), including Section 6.2 (Fees and Expenses) thereof (which
provides, without limitation, reimbursement to the Purchaser Parties for fees, costs and expenses of negotiation, preparation, execution
and signing of this Amendment No.4 or otherwise relating to this Amendment No.4 or the transactions contemplated herein) and Sections
6.3(a) (Entire Agreement), 6.3(b) (Amendments), 6.3(c) (Beneficiary, Successors and Assigns), 6.3(d) (No Implied Waivers or Notice Rights),
6.3(e) (Counterparts), Section 6.3(f) (Electronic Signatures), 6.4 (Notices), 6.7 (Severability) and 6.15 (Interpretation) (containing
various interpretative provisions and additional definitions) thereof. In addition, without limitation, (a) Section 6.6 (Governing
Law and Courts) thereof provides that this Amendment No.4 shall be governed by and construed in accordance with the laws of the State
of Delaware and that Proceedings in respect hereto shall be brought exclusively in the Delaware state courts sitting in Wilmington, DE
or the federal courts for the District of Delaware sitting in Wilmington, DE (subject to certain exceptions for enforcement Proceedings
brought by the Collateral Agent or any Purchaser Party) and (b) in Section 6.16 (Waiver of Jury Trial, Certain Other Rights),
the parties thereto (which include the parties hereto) thereby irrevocably and unconditionally waived, to the fullest extent permitted
by applicable Regulations, any right that they may have to trial by jury of any claim or cause of action or in any Proceeding, directly
or indirectly based upon or arising out of, under or in connection with, this amendment or the transactions contemplated therein or related
thereto (whether founded in contract, tort or any other theory). The parties hereto hereby reaffirm all of these and all other provisions
of the Transaction Documents applying to the Transaction Documents as applying to this Amendment No.4, all of which are hereby incorporated
herein by reference. If the Amendment Effective Date has not occurred within two Business Days after the date hereof, the Collateral Agent
may, in its sole discretion upon notice to the Company, elect to terminate this Amendment No.4, at which point this Amendment No.4 will
be of no further force and effect.
Further to the foregoing, as consideration for
Ascent and Collateral Agent agreeing to execute this Amendment No.4 and to participate in the Additional Closing expected to occur on
the date hereof, the Company agrees to issue to Ascent not later than 5 calendar days following the Amendment Effective Date, a warrant
to purchase Common Stock (the “Warrant”), in form reasonably acceptable to Ascent entitling Ascent to purchase 1,111,111
shares of Common Stock of the Company at an initial exercise price of $0.50 per share in the standard form typically used by Ascent for
transactions of type; provided, that such Warrant shall contain provisions providing anti-dilution protection to the holder of
the Warrant, a fundamental transaction provision and a cashless exercise provision. The Warrant shall constitute “Transaction Documents”
as defined in the Purchase Agreement and failure to deliver such Warrant shall constitute an immediate Event of Default under all Notes
issued under the Purchase Agreement.
- 5 -
This amendment may be executed in counterparts,
which may be effectively transmitted by fax or e-mail (in each case return receipt requested and obtained) and which, together, shall
constitute one and the same instrument.
Very truly yours,
ASCENT PARTNERS
FUND LLC,
as Holder
By:
/s/ Mikhail Gurevich
Name:
Mikhail Gurevich
Title:
Authorize Signatory
Accepted and Agreed
As of the Date First Written Above:
PROFUSA, INC., a Delaware corporation,
as Company
By:
/s/ Ben Hwang
Name:
Ben Hwang
Title:
CEO
Ben
Hwang
as Company Party
/s/ Ben Hwang
William McMillian
as Company Party
By:
/s/ William McMillian
- 6 -
Northview Sponsor I LLC
as Company Party
By:
/s/ Fred Knechtel
Name:
Fred Knechtel
Title:
Managing Partner
PROFUSA, INC., a California corporation,
as Company Party
By:
/s/ Ben Hwang
Name:
Ben Hwang
Title:
CEO
- 7 -
EXHIBIT
a-1
FORM
OF NOTE TO THE SECURITIES PURCHASE AGREEMENT issued in first tranche and second tranche
(SEE ATTACHED)
- 8 -
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES REGULATIONS AND, ACCORDINGLY, MAY
NOT BE SOLD, OFFERED FOR SALE OR PLEDGED AS SECURITY IN THE ABSENCE OF SUCH REGISTRATION WITHOUT RELIANCE ON AN EXEMPTION UNDER THE SECURITIES
ACT AND COMPLIANCE WITH APPLICABLE STATE SECURITIES REGULATIONS.
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT
(“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), [NAME], A REPRESENTATIVE OF THE COMPANY WILL, BEGINNING TEN
DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION
§1.1275-3(b)(1)(i). [NAME] MAY BE REACHED AT (___) ___-____, ___@____________.
SENIOR SECURED
CONVERTIBLE PROMISSORY NOTE
DUE ______________
20_1
Original Issue Date: ____________
Principal Amount: $__________
Purchase Price: $__________
This Senior Secured Convertible Promissory Note
is one of a series of duly authorized and validly issued Senior Secured Convertible Promissory Notes of Profusa, Inc. (formerly known
as, Northview Acquisition Corp.), a Delaware corporation, (the “Company”), designated as its Senior Secured Convertible
Promissory Note due _______, 20__2 (this “Note” and, collectively with the other Notes of such series,
the “Notes”), issued and sold by the Company pursuant to the Securities Purchase Agreement, dated as of February 11,
2025, by and among the Company, and Ascent Partners Fund LLC (together with its successors and registered assigns, the “Holder”),
a Delaware limited liability company (as amended, restated or supplemented from time to time, the “Purchase Agreement”).
Capitalized terms used but not otherwise defined herein are used as defined in the Purchase Agreement on the date hereof, with such amendments
as may be acceptable to the Holder in its sole discretion). This Note is entered into pursuant to the Purchase Agreement and is subject
to the terms and conditions thereof.
FOR VALUE RECEIVED, the Company promises to
pay to the order of the Holder the principal amount first written above on ______________3 (the “Maturity Date”)
in full in cash or on such earlier date as this Note is required or permitted to be repaid as provided hereunder, in each case together
with all accrued but unpaid interest thereon and all other Obligations (as defined below), and otherwise to pay interest to the Holder
on the aggregate unconverted and then outstanding principal amount of this Note and such other Obligations in accordance with the provisions
hereof. Amounts repaid will not be advanced again.
This Note is subject to the following additional provisions:
Section
1. Definitions
For the purposes hereof, in addition to terms defined
elsewhere in this Note or not defined in this Note but defined in the Purchase Agreement, the following terms shall have the following
meanings:
“Alternate Consideration” has the
meaning specified in Section 5(e).
“Amortization Payment” has the meaning
specified in Section 2(a).
“Amortization Payment Date” has
the meaning specified in Section 2(a).
1 Insert date that is 18 months following Original Issue Date
2 Insert date that is 18 months following Original Issue Date
3 Insert date that is 18 months following Original Issue Date
- 9 -
“Amortization Price”
means, as of any date, the lower of (i) the Conversion Price on such date and (ii) 95% of the lowest VWAP in the ten (10) Trading Days
prior to such date.
“Attribution Parties”
has the meaning specified in Section 4(d).
“Base Share Price”
has the meaning specified in Section 5(c).
“Beneficial Ownership
Limitation” has the meaning specified in Section 4(d).
“Buy-In” has
the meaning specified in Section 4(c)(vii).
“Capital Lease”
means, as applied to any Person, any lease of, or other arrangement conveying the right to use, any property (whether real, personal or
mixed) by that Person as lessee that, in conformity with U.S. generally accepted accounting principles (GAAP) consistently applied, is
or should be accounted for as a capital lease on the balance sheet of that Person.
“Capital Stock”
means any share, participation or other equivalent (however designated) of the capital stock of a corporation, any equivalent ownership
interest in any other Person, including partnership interests and membership interests, and any warrant, right or option to purchase or
other arrangement (including through a conversion or exchange of any other property) to acquire or subscribe for any item otherwise satisfying
the definition of “Capital Stock,” whether or not presently convertible, exchangeable or exercisable.
“Cash Payment Fee”
has the meaning specified in Section 2(g).
“Change of Control”
means the occurrence of any of the following: (a) any Person or group of Persons (within the meaning of the Exchange Act) shall have acquired
legal or beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of (i) 50% prior to any initial public
offering of the Common Stock and (ii) 20% thereafter or more of the issued and outstanding Voting Stock of any Company Party (whether
on an as converted, fully diluted basis or without taking into account any potential conversion or dilution of Stock Equivalents), other
than by acquiring such Common Stock directly in an offering made to the general public, (b) during any period of twelve consecutive calendar
months, individuals who, at the beginning of such period, constituted the board of directors of the Company (together with any new directors
whose election by the board of directors of the Company or whose nomination for election by the stockholders of the Company was approved
by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose
elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority
of the directors then in office or (c) the Company shall cease to own and control all of the economic and voting rights associated with
all of the outstanding Stock of the other Company Parties.
“Closing Bid Price”
and “Closing Sale Price” means, for any Security as of any date:
(i) the last closing
bid price and last closing trade price, respectively, for such Security on the Principal Trading Market for such Security, as reported
by Bloomberg; or
(ii) if such Principal
Trading Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as
the case may be), then the last bid price or last trade price, respectively, of such Security prior to 4:00:00 p.m., New York time, as
reported by Bloomberg; or
(iii) if such Security
no longer trades on its Principal Trading Market, then the last closing bid price or last trade price, respectively, of such Security
on the principal Trading Market where such Security is listed or traded as reported by Bloomberg; or
(iv) if such Security
no longer trades on a Trading Market, the last closing bid price or last trade price, respectively, of such Security in the over-the-counter
market on the electronic bulletin board for such Security as reported by Bloomberg; or
- 10 -
(v) if no closing bid
price or last trade price, respectively, is reported for such Security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such Security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly
Pink Sheets LLC); or
(vi) if the “Closing
Bid Price” or the “Closing Sale Price” cannot be calculated for a Security on a particular date based on
the foregoing, the “Closing Bid Price” and the “Closing Sale Price” of such Security on such date
shall be the fair market value as mutually determined by the Company and the Holder; or
(vii) if the Company
and the Holder are unable to agree upon the fair market value of such Security, then such dispute shall be resolved, and such fair market
value (and therefore the “Closing Bid Price” and “Closing Sale Price”) shall be determined, in accordance
with the procedures set forth in Section 8(d).
All such determinations shall be appropriately
adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such period.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other Capital Stock into which such shares of common stock
may hereafter be changed or any share capital resulting from a reclassification of such common stock.
“Conversion”
has the meaning specified in Section 4.
“Conversion Date”
has the meaning specified in Section 4(a).
“Conversion Price”
has the meaning specified in Section 4(b).
“Conversion Schedule”
means the Conversion Schedule in the form of Schedule 1.
“Conversion Shares”
means, collectively, the shares of Common Stock issuable upon conversion of this Note in accordance with the terms hereof, including shares
of Common Stock issued upon conversion, redemption, or amortization of this Note, and shares of Common Stock issued and issuable in lieu
of the cash payment of interest on this Note in accordance with the terms of this Note.
“Customary Permitted
Liens” means all of the following, for any Person:
(i) Liens securing the
payment of taxes, assessments or other charges or levies imposed by any Governmental Authority which are either not yet overdue or the
validity of which are being contested in good faith by appropriate proceedings diligently pursued and with respect to which adequate reserves
have been set aside on such Person’s books;
(ii) non-consensual
statutory Liens (other than Liens securing the payment of taxes) arising in the ordinary course of business to the extent (A) such Liens
secure Indebtedness that is not overdue for a period of more than 30 days or (B) such Liens secure Indebtedness relating to claims or
liabilities that are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested
in good faith by appropriate proceedings diligently pursued, in each case prior to the commencement of foreclosure or other similar proceedings
and with respect to which adequate reserves have been set aside on such Person’s books;
(iii) zoning, building
and land use restrictions, easements, servitudes, encumbrances, licenses, covenants and other restrictions affecting the use of real property
or minor defects or irregularities in title thereto that do not interfere in any material respect with the use of such real property or
the ordinary conduct of the business of the Company and its Subsidiaries as presently conducted thereon or materially impair the value
of the real property that may be subject thereto;
- 11 -
(iv) pledges and deposits
of cash in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social
security benefits consistent with current practices as in effect on the date hereof;
(v) undetermined or
inchoate Liens and charges arising or potentially arising under statutory provisions which have not at the time been filed or registered
in accordance with applicable Regulation or of which written notice has not been duly given in accordance with applicable Regulation or
which although filed or registered, relate to obligations not due or delinquent, including without limitation statutory Liens incurred,
or pledges or deposits made, under worker’s compensation, employment insurance and other social security legislation;
(vi) Liens or deposits
to secure the performance of bids, tenders, expropriation proceedings, trade contracts, leases, statutory obligations, surety and performance
bonds and other obligations of a like nature (other than for borrowed money), and deposits to secure equipment contracts, in each case
incurred in the ordinary course of business;
(vii) appeal bonds;
(viii) landlord Liens
for rent not yet due and payable;
(ix) Liens arising from
operating leases and the precautionary UCC financing statement filings in respect thereof;
(x) judgments and other
similar Liens arising in connection with court proceedings that do not constitute a Default or Event of Default; provided, that,
(A) such Liens are being contested in good faith and by appropriate proceedings diligently pursued, (B) adequate reserves or other appropriate
provision, if any, as are required by U.S. generally accepted accounting principles, consistently applied, have been made therefor and
(C) a stay of enforcement of any such Liens is in effect; and
(xi) customary rights
of set-off or combination of accounts in favor of a financial institution with respect to deposits maintained by such Person.
“Default” means
any event which, with the passing of time or the giving of notice or both, would become an Event of Default.
“Default Rate”
means twenty-four percent (24%) per annum.
“Derivative”
means (a) any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement
or other similar agreement or arrangement, (b) any foreign exchange contract, currency swap agreement, futures contract, option contract,
synthetic cap or other similar agreement or arrangement, (c) any futures or forward contract, spot transaction, commodity swap, purchase
or option agreement, other commodity price hedging arrangement, cap, floor or collar transaction, any credit default or total return swap,
and (d) any other derivative instrument, any other similar speculative transaction and any other similar agreement or arrangement designed
to alter the risks of any Person arising from fluctuations in any underlying variable, including interest rates, currency values, insurance,
catastrophic losses, climatic or geological conditions or the price or value of any other derivative instrument. For the purposes of this
definition, “derivative instrument” means “any derivative instrument” as defined in Statement of Financial Accounting
Standards No. 133 (Accounting for Derivative Instruments and Hedging Activities) of the United States Financial Accounting Standards Board,
and any defined with a term similar effect in any successor statement or any supplement to, or replacement of, any such statement.
“Dilutive Issuance”
has the meaning specified in Section 5(c).
“Dilutive Issuance Notice”
has the meaning specified in Section 5(c).
“Dispute Submission Deadline”
has the meaning specified in Section 8(d)(i).
- 12 -
“DTC” means
the Depository Trust Company.
“DTC/FAST Program”
means the DTC’s Fast Automated Securities Transfer Program.
“DWAC Eligible”
means that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements, including 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 Conversion Shares are otherwise eligible for delivery via
DWAC, and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Conversion Shares via DWAC.
“Equity Payment Conditions”
means, as of any date, (a) no Default or Event of Default is continuing, (b) the Common Stock is trading on its Principal Trading Market
and all of the Conversion Shares are listed or quoted for trading in such Principal Trading Market and comply with all of the conditions
for such listing or quotations (and the Company reasonably believes that trading of the Common Stock on such Principal Trading Market
will continue uninterrupted, and shall continue to comply with the conditions for listing or quotation for trading in such Principal Trading
Market, for the 180 days following such date), (c) the Company has timely filed (or obtained extensions in respect thereof and filed within
the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act and the
Company has met the current public information requirements of Rule 144(c) under the Securities Act as of the end of the period in question,
(d) the average daily dollar trading volume of the Common Stock for the twenty (20) full Trading Days preceding such date exceeds at least
12.5% of the aggregate “Initial Principal Amounts” of all of the Purchase Agreement Notes, (e) the Company shares of common
stock are DWAC Eligible and not subject to a “DTC chill,” and (f) the Common Stock does not constitute “penny stock”
under and as defined in the Exchange Act and the corresponding Regulation, and (g) all Conversion Shares are freely tradeable and registered
under the Securities Act for unrestricted resale.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
has the meaning specified in Section 4(e).
“Exchange Cap Allocation”
has the meaning specified in Section 4(e).
“Exchange Cap Shares”
has the meaning specified in Section 4(e).
“Event of Default”
has the meaning specified in Section 7(a).
“Floor Price”
means an amount per share of Common Stock equal to thirty-five cents ($0.35). Notwithstanding anything herein to the contrary, the Conversion
Price shall at no time be less than the Floor Price.
“Fundamental Transaction”
means any of the following transactions, whether effected directly or indirectly or through on or a series of related transactions: (i)
any merger or consolidation of the Company, (ii) any merger or consolidation of any other Company Party with or into another Person that
is not a Company Party; (iii) any Sale or license of any right, title or interest in the assets of any Company Party, other than to a
Company Party and other than transactions in the ordinary course of business and transactions that, individually or in the aggregate,
affect less than 10% of the market value of the consolidated assets of the Company Parties, (iv) the completion of any purchase offer,
tender offer or exchange offer (whether by the Company or another Person) pursuant to which holders of Common Stock Sell, tender or exchange
their shares for other Securities, cash or property, and (v) any other corporate reorganization, Securities purchase or other business
combination involving the Company or, if all surviving entities are not a Company Party, any other Company Party, including any spin-off
or scheme of arrangement of any Company Party, any reorganization, recapitalization or reclassification of the Common Stock, any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other Securities, cash or other assets.
“Late Fee”
has the meaning specified in Section 2(f).
“Mandatory Prepayment
Amount” has the meaning specified in Section 2(b).
- 13 -
“Minimum Interest Amount”
means 10% of the Initial Principal Amount of this Note, which amounts represents a full year of interest payments hereunder; provided,
that such amount shall be reduced by the amount of interest accrued hereunder on the principal amount of this Note.
“Note Register”
has the meaning specified in Section 3(c).
“Notice of Conversion”
has the meaning specified in Section 4(a).
“Obligations”
means all amounts, indebtedness, obligations, liabilities, covenants and duties of every type and description owing by any Company Party
from time to time to the Holder, the Collateral Agent or any of their Purchaser Parties under this Note or any other Transaction Document,
whether direct or indirect, joint or several, absolute or contingent, due or to become due, liquidated or unliquidated, secured or unsecured,
now existing or hereafter arising and however acquired (regardless of whether acquired by assignment), whether or not evidenced by any
note or other instrument or for the payment of money, including, without duplication, (i) the principal amount of the Note owing by the
Company or any other Company Party (including any Mandatory Prepayment Amount, any Optional Prepayment Amount and any Minimum Interest
Amount owing hereunder), (ii) all other amounts, fees (including all Late Fees and any Cash Payment Fees), interest (including the Minimum
Interest Amount and interest accruing at the Default Rate), liquidated damages, commissions, charges, costs, expenses, attorneys’
fees and disbursements, indemnities (including Losses and other amounts for which any Company Party is required to indemnify the Collateral
Agent, the Holder, or any of their Purchaser Parties under the Purchase Agreement), reimbursement of amounts paid and other sums chargeable
to any Company Party under any Transaction Document or otherwise arising under any Transaction Document and (iii) all interest on any
item otherwise qualifying as “Obligation” hereunder, whether or not accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or similar proceeding, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding.
“Optional Prepayment
Amount” means, at any time with respect to any principal amount, the sum of (a) one hundred (100%) of such principal amount
and all accrued interest hereon outstanding as of such time (including any Minimum Interest Amount remaining outstanding on such principal
amount as of such time) and (b) all other amounts, costs, fees (including Late Fees and Cash Payment Fees), expenses, indemnification
and liquidated and other damages and other amounts due to the Holder, the Collateral Agent or any of their Purchaser Parties in respect
of this Note or any other Transaction Document.
“Original Issue Date”
means the date of the first issuance of this Note, regardless of any transfers of any Note and regardless of the number of instruments
which may be issued to evidence such Note.
“Permitted Debt”
means all of the following: (i) Indebtedness owing to any Secured Party under any Transaction Document; (ii) unsecured intercompany Indebtedness
between the Company and its Subsidiaries in the ordinary course of business; (iii) unsecured Indebtedness of the Company or any of its
Subsidiaries to trade creditors (including overdue amounts on invoices) incurred on customary terms in the ordinary course of business;
(vi) Indebtedness of the Company or any Subsidiary under Capital Leases for equipment or Indebtedness of the Company or any Subsidiary
secured by a Purchase Money Lien, which Indebtedness shall not at any time exceed $50,000 in the aggregate for the Company and its Subsidiaries;
and (vii) Indebtedness of the Company or any of its Subsidiaries under leases for facilities that are treated as Capital Leases under
GAAP.
“Permitted Liens”
means (i) the Liens of the Secured Parties as provided for in any Transaction Document; (ii) Customary Permitted Liens of the Company
Parties; and (iii) Purchase Money Liens granted to or held by Purchase Money Lien lenders in connection with the purchase, leasing or
acquisition of capital equipment in the ordinary course of business and without resulting in a contravention of any applicable provisions
of this Note.
“Purchase Agreement Notes”
means all “Notes” issued under, and as defined in, the Purchase Agreement.
“Purchase Money Lien”
means any Lien securing Indebtedness (i) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure
the purchase price of such equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment
or (ii) existing on such equipment at the time of its acquisition, in each case provided, that the Lien is confined solely to the property
so acquired and improvements thereon, and the proceeds of such equipment.
- 14 -
“Required Dispute Documentation”
has the meaning specified in Section 8(d)(i).
“Secured Parties”
means the Holder, the Collateral Agent and each other holder of Purchased Securities, each beneficiary of any indemnification or reimbursement
obligation by any Company Party under the Purchase Agreement or any other Transaction Document.
“Share Delivery Date”
has the meaning specified in Section 4(c)(ii).
“Subsequent Offering”
has the meaning specified in Section 2(b).
“Successor Entity”
has the meaning specified in Section 5(e).
“VWAP” means,
for or as of any date for any Security, the following:
(i) the dollar volume-weighted
average price for such Security on the Principal Trading Market for such Security during the period beginning at 9:30:01 a.m., New York
time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average);
or,
(ii) if Bloomberg does
not report such a price, the dollar volume-weighted average price of such Security in the over-the-counter market on the electronic bulletin
board for such Security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported
by Bloomberg; or
(iii) if no dollar volume-weighted
average price is reported for such Security by Bloomberg for such hours, the average of the highest Closing Bid Price and the lowest Closing
Ask Price of any of the market makers for such Security on such date as reported in the “pink sheets” by OTC Markets Group
Inc. (formerly Pink Sheets LLC); or
(iv) if the VWAP cannot
be calculated for such Security on such date on any of the foregoing bases, the VWAP of such Security on such date shall be the fair market
value as mutually determined by the Company and the Holder.
All such determinations shall be appropriately adjusted
for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
SECTION 2. REPAYMENT
a) Amortization of Principal.
Commencing on _____________ __, 20__4 and continuing on the first day of each calendar month thereafter (each an “Amortization
Payment Date”), the Company shall pay in full the portion of the principal amount of this Note set forth on Schedule 2 opposite
such date (each, an “Amortization Payment”). Each Amortization Payment may, at the option of the Company but subject
to the satisfaction of the Equity Payment Conditions on the date of such Amortization Payment (or due waiver by the Holder), be made
instead of cash in Common Stock valued at the Amortization Price on the date of such payment. In addition, the Company shall pay in full
on the Maturity Date all remaining Obligations then outstanding.
b) Mandatory Prepayments.
On the next Business Day following the Company consummating any public or private offering or any other issuance of any Capital Stock
or any other issuance of any Capital Stock (other than any issuance of Common Stock to the general public), Stock Equivalents or of any
other Securities or Indebtedness (including entering into any Equity Line of Credit or issuing any Variable-Priced Equity-Linked Instrument)
or any other debt or equity financing or capital-raising transaction of any kind (each, a “Subsequent Offering”) on
any date other than the Maturity Date, the Company shall, subject to the Holder’s conversion rights set forth herein, to repay the
Obligations pay to the Holder in cash an amount equal (each, a “Mandatory Prepayment Amount”) (i) in the case of a
Subsequent Offering other than an Equity Line of Credit, 25% of the net proceeds of such Subsequent Offering and (ii) in the case of Subsequent
Offering that is an Equity line of Credit, 33.3% of the net proceeds, with respect to shares of Common Stock registered under the registration
statement on Form S-1 (File No. 333-290805) or 50.0% of the net proceeds, with respect to shares of Common Stock registered under any
registration statement on Form S-1 filed after the date hereof).
4 Insert date that is 7 months following Original Issue Date
- 15 -
c) Voluntary Prepayments.
So long as no Default or Event of Default exists, at any time upon ten (10) Business Days’ prior written notice to the Holder (which
notice shall be a Transaction Document and constitute an irrevocable agreement to pay such amount on the date set forth on such notice)
stating the proposed date and proposed principal amount of such prepayment, but subject to the Holder’s conversion rights set forth
herein, the Company may prepay any portion of the principal amount of this Note, any accrued and unpaid interest, and any other amounts
due under this Note. If the Company exercises its right to prepay the Note, instead of such principal amount, the Company shall pay to
the Holder in cash an amount equal to the full Optional Prepayment Amount for such principal amount prepaid. The Holder may continue to
convert the principal amount of the Note to be prepared after the date notice of the prepayment is given until the date it receives such
Optional Prepayment Amount in full in cash.
d) Interest. The Company
shall pay interest to the Holder on the aggregate then-outstanding principal amount of this Note (and the then-outstanding principal amount
of any other Obligation owing that does not expressly provide for any other rate of interest), which shall accrue daily at the rate of
ten percent (10%) per annum from the date this Note is issued (or in the case of any other Obligation, from the date such obligation becomes
due and payable) through the date such principal amount or other Obligation is paid in full; provided, that the Minimum Interest
Amount shall be fully earned and accrued on the Original Issue Date. Accrued interest shall replace and not add to the Minimum Interest
Amount and all payments of such accrued interest shall cause a corresponding reduction in any remaining Minimum Interest Amount. Accrued
and unpaid interest shall be due and payable on the first day of each calendar month, on each Conversion Date and on the Maturity Date,
or as otherwise set forth herein. Any interest accrued and unpaid on any principal amount, and any remaining Minimum Interest Amount on
such principal amount, shall be due and payable upon any repayment of such principal amount under this Note; provided, that, if
such principal repayment is a regularly scheduled Amortization Payment set forth on Schedule 2, any remaining Minimum Interest
Amount shall due and be payable (until such remaining Minimum Interest Amount shall be fully paid) in the amounts and on the dates on
which accrued interest would have been due if such Amortization Payments had not been made and interest had accrued on such principal.
Subject to satisfaction (or due waiver by the Holder) of the Equity Payment Conditions on the date of such payment, interest (including
any remaining Minimum Interest Amount) may be paid in Common Stock in the Company’s discretion at the Amortization Price. Upon an
Event of Default, the interest rate set forth hereunder shall increase as provided in clause (e) below. The Minimum Interest Amount
is intended to compensate the Holder for a lesser profit in case of early repayment and for the internal and external work and expenditure
of time and money involved in the evaluation and preparation of the Transaction Documents and the consummation of the transactions contemplated
thereunder. The Minimum Interest Amount is not to be construed to cover or be applied against any indemnity or any out-of-pocket fees,
costs or expenses incurred in any action to collect any Obligation or to foreclose any Lien securing the same. This provision shall not
affect or limit the Holder’s rights or remedies with respect to any Event of Default.
e) Default Rate. Immediately
on and after the occurrence of any Event of Default, without need for notice or demand all of which are waived, interest on this Note
shall, in whole, automatically and without the need for any notice, demand or any other action by the Collateral Agent or the Holder all
of which are hereby waived, accrue and be owed daily at an increased interest rate equal to the lower of the Default Rate or the maximum
rate permitted under applicable Regulations. If an Event of Default (after giving effect to notice periods and grace periods) occurs,
the Default Rate shall become effective as of the date the Default that because such Event of Default first occurred, without consideration
for any notice provision or grace period.
f) Late Fee. The Company
shall pay a late fee (each a “Late Fee”) on any Obligation that is not paid when due (after taking into account applicable
grace periods set forth in Section 7(a)(i) hereof), in an amount equal to ten percent (10%) of such payment, to the Person owed such Obligation.
This Late Fee shall be due and payable immediately upon such failure. It is intended to cover the inconvenience and additional internal,
administrative and other fees, costs and expenses involved in processing delinquent payments and is not to be construed to cover or be
applied against any indemnity or any out-of-pocket fees, costs or expenses incurred in any action to collect any Obligation or to foreclose
any Lien securing the same. This provision shall not affect or limit the Holder’s rights or remedies with respect to any Event of
Default. This obligation to pay a Late Fee is a separate obligation and, once it has arisen hereunder, a failure to pay such Late Fee
will not be cured implicitly by any waiver of any Event of Default or similar event that may have caused the payment that gave rise to
such Late Fee.
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g) Cash Payment Fee. The
Company shall pay a cash payment fee (each a “Cash Payment Fee”) in an amount equal to five percent (5%) of the amount
of any repayment of the principal amount of this Note that is made in cash at any time when (i) the Company shall not have received a
notice from the Holder or the Collateral Agent that an Event of Default exists, or (ii) the Company shall have received such a notice
and such Event of Default shall have been cured to the satisfaction of the Holder. This Cash Payment Fee shall be due and payable together
with such repayment and is intended to cover any loss in revenues resulting from such repayment being made in cash instead of using Common
Stock, as well as other internal costs and expenses and is not to be construed to cover or be applied against any indemnity or any out-of-pocket
fees, costs or expenses incurred in any action to collect any Obligation or to foreclose any Lien securing the same. The Cash Payment
Fee shall not be applicable to the payment of any Mandatory Prepayment Amount. This provision shall not affect or limit the Holder’s
rights or remedies with respect to any Event of Default. This obligation to pay a Cash Payment Fee is a separate obligation hereunder
and, once arisen, shall be owed regardless of whether such payment is later returned, reversed, forgiven, waived or voided.
h) Calculations and Payment
Provisions. All payments made to the Holder, the Collateral Agent and their Purchaser Parties under any Transaction Document, except
as otherwise expressly provided in any Transaction Document, shall be made in cash, which shall mean in immediately available dollars
and without set off or counterclaim. Interest and fees owing to any of them shall be calculated on the basis of a 360-day year consisting
of twelve thirty (30)-day periods, for the actual number of days occurring, in whole or in part, in the applicable period. The Holder
(or, for payments owing to it, the Collateral Agent) shall have the option to refuse or accept, in their sole discretion, any payment
to the Collateral Agent, the Holder or their Purchaser Parties attempted to be made without a required notice, without a required Optional
Prepayment Amount, a Minimum Interest Amount or a required fee. The Holder (or, for payments owing to the Collateral Agent, the Collateral
Agent) may, in its sole discretion, apply or recharacterize any payment made under any Transaction Document to the payment of any outstanding
Obligation, regardless of the intended characterization thereof by any Company Party, including by recharacterizing a payment of principal
made to a payment of an Optional Prepayment Amount, a Minimum Interest Amount or a required fee, even if this characterization results
in a smaller payment of principal. The Company hereby irrevocably waives the right to direct the application of any payment (or, after
any Event of Default, any proceeds of Collateral) to any Obligation. Whenever any payment under any Transaction Document shall be stated
to be due on a day other than a Business Day, such payment shall be due on the next succeeding Business Day, including for purposes of
the calculation of interest and fees. Any payment of any Obligation received by the Holder, the Collateral Agent or any Purchaser Party
after 3 p.m. on any day shall be deemed received on the next Business Day. Each determination by the Holder (or, for payments owing to
it, the Collateral Agent) of an amount of interest or fee due hereunder shall be conclusive and binding for all purposes, absent manifest
error.
Section
3. Registration of Transfers and Exchanges
a) Different Denominations.
This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested by
the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.
b) Investment Representations.
This Note has been issued subject to certain investment representations of the original Holder and may be transferred or exchanged
only in compliance with applicable federal and state securities Regulations.
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c) Reliance on Note Register.
The Company shall maintain in its records a list of the Holders and of registration and transfers of the Note (the “Note
Register”). The initial Holder is listed herein. Any Holder may later notify in writing the Company of an assignment or transfer
and the Company shall notify such transfer in the Note Register. Failure by the Company to duly notify such transfer in the Note Register
shall not affect the validity of such assignment or transfer. Nevertheless, if the Company has not received notice of any transfer of
this Note, the Company and any agent of the Company may treat the Person in whose name this Note is duly registered as the owner hereof
for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue. Upon request
by the Holder, the Company shall immediately execute and deliver to such Holder replacement Note or Notes, which may involve executing
multiple Notes with split amounts to reflect partial assignments. Promptly upon receipt of such replacement Note or Notes, such Holder
shall deliver the original Note back to the Company or, if the original Note is lost or stolen, provide an affidavit to the Company to
that effect.
Section
4. Conversion
a) Voluntary Conversion.
At any time after the Original Issue Date, all Obligations with respect to this Note shall be convertible, in whole or in part, into shares
of Common Stock at the option of the Holder, in its sole discretion, at any time and from time to time (subject to the conversion limitations
set forth in Section 4(d)). The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of
which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the amount of such
Obligations to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”).
If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is
deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of
guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required
to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest
thereon, has been converted. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note by
an amount equal to the applicable conversion. The Holder and the Company shall maintain a Conversion Schedule, containing at a minimum
the information shown on Schedule 1, and showing historically, among other things, the principal amounts converted and the date
of such conversions. The Company may deliver an objection to any Notice of Conversion within one (1) Business Day of delivery of such
Notice of Conversion. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in
the absence of manifest error.
b) Conversion Price. Subject
to the other provisions of this Note, the conversion price in effect on any Conversion Date (the “Conversion Price”) shall
be equal to the lower of (i) the amount set forth in clause (b)(i) of the definition of “Amortization Price,” and (ii) ninety-five
percent (95%) of the lowest VWAP for the Common Stock during the ten (10) consecutive Trading Days immediately preceding the applicable
Conversion Date (such lower amount, the “Alternate Conversion Price”); provided, that in no event shall the Conversion Price
be less than the Floor Price.
c) Mechanics of Conversion.
i. Conversion Shares
Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be determined
by the quotient obtained by dividing (x) the outstanding principal amount and interest of this Note to be converted by (y) the Conversion
Price.
ii. Delivery of Certificate
Upon Conversion. Not later than one (1) Trading Day after each Conversion Date (the “Share Delivery Date”), the
Company shall deliver, or cause to be delivered, to the Holder a certificate or certificates representing the Conversion Shares which,
on or after the date on which such Conversion Shares are eligible to be sold under Rule 144 without the need for current public information
and the Company has received an opinion of counsel to such effect, which such opinion must be acceptable to the Holder in its sole and
absolute discretion (which opinion the Company shall be responsible for obtaining at its sole cost and expense) shall be free of restrictive
legends and trading restrictions, representing the number of Conversion Shares being acquired upon the conversion of this Note. Each certificate
required to be delivered by the Company under this Section 4(c) shall be delivered electronically through the Depository Trust
Company or another established clearing corporation performing similar functions. If the Conversion Date is prior to the date on which
such Conversion Shares are eligible to be sold under Rule 144 without the need for current public information, or there is no registration
statement in effect covering the Conversion Shares, the Conversion Shares shall bear a restrictive legend in the following form, as appropriate:
“THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
REGULATIONS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED
BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE
144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
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Notwithstanding the foregoing, commencing
on such date that the Conversion Shares are eligible for sale under Rule 144 subject to current public information requirements, the Company,
upon written request and at the sole cost and expense of the Company, shall obtain a legal opinion that is acceptable to the Holder in
its sole and absolute discretion, to allow for such sales under Rule 144.
iii. Reservation
of Conversion Shares. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued
shares of Common Stock a number of shares of Common Stock at least equal the Reserve Amount for the sole purpose of issuance upon conversion
of this Note and payment of interest on this Note, each as herein provided, free from preemptive rights or any other actual contingent
purchase rights of Persons other than the Holder (and the other holders of the Purchase Agreement Notes). The Company covenants that all
shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
The Company shall calculate and readjust the Reserve Amount on the first Business Day of each month so long as any Purchased Security
remains outstanding.
iv. Fractional Shares.
No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a
share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash
adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the
next whole share.
v. Transfer Taxes
and Expenses. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge
to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates,
provided, that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the
issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the
Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof
shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been
paid. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion
vi. Failure to Deliver
Certificates. If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed by
the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on
or before its receipt of such certificate or certificates, to rescind such Conversion, in which event the Company shall promptly return
to the Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates
issued to the Holder pursuant to the rescinded Notice of Conversion.
vii. Obligation Absolute;
Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Note
in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the
same, the existence of any Default or Event of Default, any waiver or consent with respect to any provision hereof, the recovery of any
judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or
any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation
of Regulations by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation
of the Company to the Holder in connection with the issuance of such Conversion Shares; provided, that such delivery shall not
operate as a waiver by the Company of any such action the Company may have against the Holder. In the event the Holder of this Note shall
elect to convert any or all of the outstanding principal or interest amount hereof, the Company may not refuse conversion based on any
claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of Regulation, Contractual
Obligation or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of
all or part of this Note shall have been sought. If the injunction is not granted, the Company shall promptly comply with all conversion
obligations herein. If the injunction is obtained, the Company must post a surety bond for the benefit of the Holder in the amount of
one hundred fifty percent (150%) of the outstanding principal amount of this Note, which is subject to the injunction, which bond shall
remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to
the Holder to the extent it obtains judgment. In the absence of seeking such injunction, the Company shall issue Conversion Shares (or,
where applicable and required hereunder, cash), upon a properly noticed conversion. If the Company fails for any reason to deliver to
the Holder such certificate or certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the
Holder, in cash, as liquidated damages and not as a penalty, $1,000 per Trading Day for each Trading Day after such Share Delivery Date
until such certificates are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue
actual damages or declare an Event of Default pursuant to Section 7 for the Company’s failure to deliver Conversion Shares
within the period specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in
equity including a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder
from seeking to enforce damages pursuant to any other Section hereof or under applicable Regulation.
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viii. Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon Conversion. In addition to any other rights available to the Holder, if
the Company fails for any reason to deliver to the Holder such certificate or certificates by the Share Delivery Date pursuant to Section
4(c)(ii), and if after such Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction
or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by
the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to
or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions)
for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled
to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation
was executed (including any brokerage commissions) and (B) at the option of the Holder, in its sole discretion, either reissue (if surrendered)
this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed
rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Company had timely complied
with its delivery requirements under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase
price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of
the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause
(A) of the immediately preceding sentence, the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the
amount of such loss. Nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law
or in equity including a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver certificates representing shares of Common Stock upon conversion of this Note as required pursuant to the terms hereof.
ix. No Limitation
on Damages. More generally, nothing in this Section 4, including the availability of the option to convert the Note, shall
limit the Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 7 and the Holder shall
have the right to pursue all remedies available to it hereunder, at law or in equity including a decree of specific performance and/or
injunctive relief. The exercise of any rights under this Section 4 shall not prohibit the Holder from seeking to enforce damages
pursuant to any other Section hereof or under applicable Regulation.
d) Holder’s Conversion
Limitations. The Company shall not effect any conversion of principal or interest of this Note, and the Holder shall not have the
right to convert any principal or interest of this Note, to the extent that after giving effect to the conversion set forth on the applicable
Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder
or any of the Holder’s Affiliates, the “Attribution Parties”) would beneficially own in excess of the Beneficial
Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned
by the Holder and its Attribution Parties shall include the number of Conversion Shares issuable upon conversion of this Note with respect
to which such determination is being made, but shall exclude the number of shares of Common Stock issuable upon (i) conversion of the
remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Attribution Parties and (ii) exercise
or conversion of the unexercised or unconverted portion of any other Securities of the Company subject to a limitation on conversion or
exercise analogous to the limitation contained herein (including any other Notes) beneficially owned by the Holder or any of its Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 4(d), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation
contained in this Section 4(d) applies, the determination of whether this Note is convertible (in relation to other Securities
owned by the Holder together with any Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole
discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether
this Note may be converted (in relation to other Securities owned by the Holder together with any Attribution Parties) and which principal
amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction,
the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has
not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of
such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining
the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in
the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be,
(ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer
agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of the Holder, the Company shall
within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of Securities
of the Company, including this Note, by the Holder or its Attribution Parties since the date as of which such number of outstanding shares
of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the issuance of all Conversion Shares to be held by the Holder. The Holder, upon
not less than sixty-one (61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 4(d); provided, that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares
of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note
held by the Holder. Any such increase or decrease will not be effective until the sixty-first (61st) day after such notice
is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a
manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4(d) shall apply to
a successor Holder of this Note.
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e) Exchange Cap. The Company
shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance
of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion
of this Note or otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations
of the Principal Trading Market for the Common Stock (the number of shares which may be issued without violating such rules and regulations,
the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (i) obtains the approval
of its stockholders as required by the applicable rules of such Principal Trading Market for issuances of shares of Common Stock in excess
of such amount or (ii) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion
shall be in form and substance reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, the Holder
shall not be issued in the aggregate, upon conversion of this Note or otherwise pursuant to the terms of this Note, shares of Common Stock
in an amount greater than the product of (A) the Exchange Cap as of the proposed date of issuance for such shares multiplied by (B) the
quotient of (1) the aggregate original Principal Amount of this Note when issued to the applicable Purchaser pursuant to the Purchase
Agreement divided by (2) the aggregate original Principal Amount of all Purchase Agreement Notes when issued (the “Exchange Cap
Allocation”). In the event that the Holder sells or otherwise transfer any portion of this Note, the transferee shall be allocated
a pro rata portion of the Holder’s Exchange Cap Allocation with respect to such portion of this Note so transferred, and the restrictions
of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee.
Upon conversion in full of any holder of any Purchase Agreement Note, the difference (if any) between such holder’s “exchange
cap allocation” (under and as defined in such Purchase Agreement Note) and the number of shares of Common Stock actually issued
to such holder upon such holder’s conversion in full of any Purchase Agreement Note shall be allocated to the respective Exchange
Cap Allocations of the remaining holders of such Purchase Agreement Notes (including the Holder) on a pro rata basis in proportion to
the shares of Common Stock underlying such Purchase Agreement Notes then held by each such holder. In the event that the Company is prohibited
from issuing any shares of Common Stock pursuant to this Section 4(e)(the “Exchange Cap Shares”) to the Holder,
the Company shall pay cash to the Holder in exchange for the redemption of such portions of this Note that are not convertible into such
Exchange Cap Shares at a price equal to the sum of (A) the product of (1) such number of Exchange Cap Shares and (2) the Closing Sale
Price on the Trading Day immediately preceding the date the Holder delivers the applicable Notice of Conversion with respect to such Exchange
Cap Shares to the Company, and (B) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, brokerage commissions, if any, of the Holder incurred in connection
therewith.
Section
5. Certain Adjustments
a) Stock Dividends and Stock
Splits. If the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a Restricted Payment
payable in shares of Common Stock on shares of Common Stock or any Stock Equivalents (which, for avoidance of doubt, shall not include
any shares of Common Stock issued by the Company upon conversion of, or payment of interest on, this Note), (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of
Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares
of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number
of shares of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section
5(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
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b) Change in Option Price
or Rate of Conversion. If the purchase or exercise price provided for in any options to purchase Common Stock, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Stock Equivalents into Common Stock, or the rate at which any
Stock Equivalents are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other
than any change to the Conversion Price in this Note or any changes to the exercise price in the Warrants), the Conversion Price in effect
at the time of such increase or decrease shall be adjusted to account proportionately, for such increase or decrease. For purposes of
this Section 5(b), if the terms of any option or Stock Equivalents are increased or decreased in the manner described in the immediately
preceding sentence, then such option or Stock Equivalents and the shares of Common Stock deemed issuable upon exercise, conversion or
exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section
5(b) shall be made to the Conversion Price if such adjustment would result in an increase to the Conversion Price.
c) Subsequent Equity Sales.
If any Company Party or any Subsidiary thereof, at any time while any Obligation is outstanding or the Holder has not yet received any
Conversion Shares in connection with a conversion, shall sell or grant any option to purchase, or sell or grant any right to reprice,
or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any shares of Common
Stock or Stock Equivalents convertible or exchangeable into Common Stock, in each case other than as an Exempt Issuance, at an effective
price per share that, after giving effect to any other adjustment provided in this Note, is less than the Conversion Price then in effect
(such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”)
then, simultaneously with the consummation of each Dilutive Issuance the Conversion Price shall be reduced and only reduced to equal the
Base Share Price. For the avoidance of doubt, it is understood and agreed that if a holder of the shares of Common Stock or Stock Equivalents
so issued shall, at any time after the issuance, whether by operation of purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance,
be entitled to receive shares of Common Stock at an effective price per share that is less than the Conversion Price, such issuance shall
be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance at such effective price. Such adjustment
shall be made whenever such shares of Common Stock or Stock Equivalents are issued. No later than 8:00 am on the Trading Day following
the issuance or deemed issuance of any shares of Common Stock or Stock Equivalents subject to this Section 5(c), the Company shall
(i) notify the Holder, in writing, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice, the “Dilutive Issuance Notice”) and (ii) publicly disclose the transaction
resulting in such issuance or deemed issuance in a filing with the SEC. For purposes of clarification, whether or not the Company provides
a Dilutive Issuance Notice pursuant to this Section 5(c), upon the occurrence of any Dilutive Issuance, the Holder is entitled
to receive a number of Conversion Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base
Share Price in the Notice of Conversion.
d) Pro Rata Distributions.
While this Note is outstanding, the Company shall not declare or make any Restricted Payment (or rights to receive Restricted Payments).
In the event that the Note is repaid at the time of such Restricted Payment, the Holder shall not be entitled to participate in such Restricted
Payment. If the Holder and the Company mutually agree, and the Note is not repaid at the time of such Restricted Payment, then the Holder
shall be entitled to participate in such Restricted Payment to the same extent that the Holder would have participated therein if the
Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Note (without regard to any limitations
on exercise hereof, including the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Restricted
Payment, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the
participation in such Restricted Payment (provided, that to the extent that the Holder’s right to participate in any such
Restricted Payment would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to
participate in such Restricted Payment to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such
Restricted Payment to such extent) and the portion of such Restricted Payment shall be held in abeyance for the benefit of the Holder
until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
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e) Effect of Fundamental Transactions.
Upon the occurrence of any Fundamental Transaction, the Holder, upon any subsequent conversion of this Note, shall have the right to receive,
for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction
(without regard to any limitation in Section 4(c) on the conversion of this Note), any consideration receivable as a result of
such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible (or holder of any
equity Securities of any Company Party) immediately prior to such Fundamental Transaction (without regard to any limitation in Section
4(c) on the conversion of this Note) (the “Alternate Consideration”), including shares of Common Stock of any successor
or acquiring corporation or of the Company, in the case of a merger where it is the surviving entity. To the extent such Alternate Consideration
includes Securities, the Holder shall have the option to either treat the Note as converted on the date of consummation of such Fundamental
Transaction and obtain such Securities outright or adjust the Conversion Shares to include such additional Securities. For purposes of
any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company Parties shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. In a Fundamental Transaction where holders of Common Stock (or, as the
case may be, Securities of any Company Party) are given any choice as to the Alternate Consideration to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Note following
such Fundamental Transaction. The Company shall cause any acquiring, successor, surviving or replacement entities in any Fundamental Transaction
(the “Successor Entity”) to become a Company Party effective immediately upon the consummation of such Fundamental
Transaction and shall become a party to all Transaction Documents in the same capacity and to the same extent as the Company Party involved
in such Fundamental Transaction and, if such Fundamental Transaction involves the Company, from and after the date of such Fundamental
Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall, without any
further action, refer instead to the Successor Entity or to both Companies, as appropriate. In the case of a Fundamental Transaction resulting
in the Company no longer be in existence, the Successor Entity shall succeed to all obligations of the Company and may exercise every
right and power of the Company and shall assume all of the Obligations of the Company with the same effect as if such Successor Entity
had been named as the Company herein. The parties hereto shall amend all Transaction Documents (or execute new Transaction Documents,
including replacement Notes and an assumption of the Company’s Obligations) to reflect such change; provided that the failure
to amend or execute any such Transaction Document shall not render this clause (e) ineffective. For the avoidance of doubt, this
clause (e) is not intended to permit any Fundamental Transaction. The Company shall ensure that the Holder approves all drafts
of such amendments and new Transaction Documents prior to the consummation of, and as a condition to the consummation of, such Fundamental
Transaction. Without limitation, if the Fundamental Transaction involves the Company, the definition of Conversion Shares and Conversion
Price hereunder shall be adjusted to include Securities of the Successor Entity and to ensure the new Notes of the Holder convert into
Securities so as to protect the economic value of this Note, taking into account the relative values of the existing and replacement Conversion
Shares, and give the Holder upon conversion of this Note the Conversion Shares equivalent to the Conversion Shares it would have received
upon conversion of this Note prior to such Fundamental Transaction at an equivalent Conversion Price.
f) Calculations. All calculations
under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this
Section 5, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the
number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding.
g) Notices to the Holder.
i. Adjustments to
Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall
not later than 8:00 am on the Trading Day following such adjustment (i) deliver to each Holder a notice setting forth the Conversion Price
after such adjustment and setting forth a statement of all of the facts requiring such adjustment and the calculation thereof, and (ii)
publicly disclose the transaction resulting in such adjustment in a filing with the SEC. Notwithstanding anything in this Section 5
to the contrary, no adjustment pursuant to this Section 5 shall increase the Conversion Price other than proportional increases
upon the occurrence of a reverse stock split in accordance with Section 5(a). For the avoidance of doubt, the Holder will be entitled
to each such adjustment on the terms set forth in this Agreement whether or not the Company provides such notice, and the calculation
set forth in such notice shall not be binding on the Holder.
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ii. Notice to Allow
Conversion by Holder. If (A) the Company shall declare a dividend (or any other distribution or other Restricted Payment in whatever
form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock,
(C) the Company shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any
shares of Capital Stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all
or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other Securities,
cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion
of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear upon the Note Register, at least twenty
(20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the
date as of which the holders of the Common Stock of record to be entitled to such dividend, distribution, Restricted Payment, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for Securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided, that the failure to deliver such notice or any defect therein
or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall
remain entitled to convert this Note during the 20-day period commencing on the date of such notice through the effective date of the
event triggering such notice except as may otherwise be expressly set forth herein.
Section
6. NEGATIVE COVENANTS
a) As long as the outstanding
principal amount of the Notes exceeds $200,000.00, no Company Party shall, and no Company Party shall permit any of its Subsidiaries to,
directly or indirectly, do, or enter into any agreement to do, any of the following (except for Sections 6(a)(xiii) and (ix) which shall
be binding on each Company Party and all its Subsidiaries so long as any portion of this Note or any other Obligations is not paid in
full):
i. create, incur, assume,
enter into or suffer to exist, any Indebtedness (other than Permitted Debt) or any Guaranty Obligations with respect thereto, or repay
the principal amount of, redeem, purchase or otherwise acquire or offer to repay the principal amount of, redeem, repurchase or otherwise
acquire, any Indebtedness (other than Permitted Debt) or any Guaranty Obligation with respect thereto, whether or not existing on the
Original Issue Date (other than the Purchase Agreement Notes on a pro rata basis based on the principal amounts outstanding);
ii. create, incur, assume,
permit or suffer to exist any Lien of any kind, on or with respect to any of its assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom, other than the Liens securing the Obligations created pursuant to the Transactions Documents
and Permitted Liens;
iii. Sell any of its
assets other than disposition of assets in the ordinary course of business;
iv. make, approve, or
offer to make any Restricted Payment with respect to any shares of Capital Stock (other than the issuance and distribution of the Transaction
Securities, and then only as otherwise required under the Transaction Documents);
v. issue any Capital
Stock to any Related Party that is not a Company Party or a Subsidiary of any Company Party, except for Exempt Issuances;
vi. consummate a Fundamental
Transaction, amend its charter documents in any manner that materially and adversely affects any rights of the Holder or change the nature
of its business from the business conducted by it on the date hereof (and, after the consummation of the Business Combination, the business
conducted by any party to the Business Combination on the date hereof);
vii. enter into any
other transaction with, or make any other payment to, any Related Party of the Company that is not a Company Party or Subsidiary of any
Company Party, including (A) investments by any Company Party or any Subsidiary thereof in such other Related Party, whether in Capital
Stock, Stock Equivalents, other Securities, Indebtedness owing by such Related Party or otherwise, or Indebtedness owing to any such other
Related Party and (B) transfers, sales, leases, assignments or other acquisitions or dispositions of any asset), except for (x) payments
with respect to Permitted Debt permitted pursuant to Section 6a)(i) above, (y) transactions in the ordinary course of business
on a basis no less favorable to the Company Parties and their Subsidiaries as would be obtained in a comparable arm’s length transaction
with a Person not a Related Party and that are expressly approved by a majority of the disinterested directors of the Company (even if
less than a quorum otherwise required for board approval) and (z) salaries and other director or employee or other staff or agent compensation,
including expense reimbursements and employee benefits, of the Company Parties and their Subsidiaries that, in the case of officers, directors
and employees, staff and agents that are also Related Parties even if their employee, staff or agent relationship is not taken into account,
does not include any increase from the compensation in effect on, and disclosed to the Collateral Agent and the Holder on or before the
date hereof;
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viii. fail to use the
proceeds of the Note as represented in Section 3.1(gg) of the Purchase Agreement (including by being engaged in operations involving
the financing of any investments or activities in, or any payments to, any Sanctioned Person) or conduct its business in a manner that
causes it to become an “investment company” subject to registration under the Investment Company Act of 1940, as amended,
or a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended) or fail
to provide a certification to the Holder with respect to any of the foregoing items in this clause (viii) upon the Holder’s
request; or
ix. directly or indirectly
(including through agents, contractors, trustees, representatives or advisors) (a) be in violation of any Sanctions Law or engage in,
or conspire or attempt to engage in, any transaction evading or avoiding any prohibition in any Sanctions Law, (b) be a Sanctioned Person
or derive revenues from investments in, or transactions with Sanctioned Persons, (c) have any assets located in Sanctioned Jurisdictions,
(d) deal in, or otherwise engage in any transactions relating to, any property or interest in property blocked pursuant to any Regulation
administered or enforced by OFAC or (e) fail to comply with any material Regulations or Contractual Obligations applicable to it or fail
to obtain or comply with any material Permits.
Section
7. Events of Default
a) “Event of Default”
means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary
or involuntary or effected by Regulation or pursuant to any judgment, decree or order of any court, or any order, rule or Regulation of
any Governmental Authority):
i. any default in the
payment of (A) the principal amount of this Note when due or (B) any interest, fees, liquidated damages or any other Obligation owing
to the Holder, the Collateral Agent or any of their Purchaser Parties under any Transaction Document, within (5) Business Days after such
principal, interest, fee, liquidated damage or other Obligation shall become due and payable, whether on the Maturity Date or otherwise;
ii. any Company Party
shall fail for any reason to comply with Section 2.3(a) (Deliveries to Initial Purchasers), Section 2.4 (Post-Closing Deliveries) or
Section 4.11 (Trading Activities of Purchasers) of the Purchase Agreement or Section 2(b), Section 2(f), Section
4(c) (including Section 4(c)(iii)), Section 6, Section 8(k) Section 8(l) of this Note or any other Section of this Note
or any Transaction Document that provides for an action after a notice period or that provides a specific period of time for the Company
Parties to comply with;
iii. any representation
or warranty made by any Company Party in this Note, any other Transaction Document, any other Contractual Obligation with, or any other
report, financial statement, document, written statement or certificate made or delivered to, the Holder or any other Holder Party shall
be untrue or incorrect in any material respect as of the date when made or deemed made;
iv. any Company Party
shall provide at any time notice to the Holder, including by way of public announcement, of such Company Party’s intention to not
honor any provision of this Note or any other Transaction Document (including requests for conversions of this Note in accordance with
the terms hereof);
v. any Company Party
shall fail to observe or perform any other covenant, provision, or agreement contained in this Note or any other Transaction Document
which failure is not cured, if possible to cure, within the earlier to occur of (A) five (5) Trading Days after notice of such failure
sent by the Holder or by any other Holder Party to the Company and (B) ten (10) Trading Days after any Company Party has become or should
have become aware of such failure;
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vi. a breach, default
or event of default (without regard for any cure period therefor provided therein) shall have occurred under any Indebtedness of any Company
Party (A) having (individually or in the aggregate for all such Indebtedness) an aggregate maximum principal amount or commitment greater
than Two Hundred Thousand Dollars ($200,000), or (B) any such Indebtedness shall become or be declared due and payable prior to the date
on which it would otherwise become due and payable;
vii. a breach, default
or event of default (without regard to any grace or cure period provided in the applicable agreement, document or instrument or any subsequent
waiver or other modification thereto) shall have occurred under any other Contractual Obligation to which any Company Party is obligated
that, if determined to be adverse to any Company Party, could reasonably be expected to result in any injunction affecting any Company
Party or any Loss to the Company Parties in excess of Two Hundred Thousand Dollars ($200,000);
viii. any monetary judgment,
writ or similar final process shall be entered or filed against any Company Party, any Subsidiary of any Company Party or any of their
assets for an injunction or for monetary damages of more than Two Hundred Thousand Dollars ($200,000), and such judgment, writ or similar
final process shall remain unvacated, unbonded or unstayed for a period of forty-five (45) calendar days;
ix. the occurrence of
any levy upon or seizure or attachment of, or any uninsured loss of or damage to, any asset of any Company Party or any Subsidiary of
any Company Party having an aggregate fair value or repair cost (as the case may be) in excess of Two Hundred Thousand Dollars ($200,000)
individually or in the aggregate, and any such levy, seizure or attachment shall not be set aside, bonded or discharged within forty-five
(45) after the date thereof;
x. (A) any Company Party
or any Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) of any Company Party shall commence a case or other Proceeding
under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of debts or liquidation or similar Regulation of any jurisdiction relating
to the Company or any such Subsidiary or any Proceeding seeking the entry of an order for relief or the appointment of a custodian, receiver,
trustee, liquidator or other similar official for it or for any of its assets, (B) any such case or other Proceeding shall be commenced
against any Company Party or any such Subsidiary by any other Person and such case or other Proceeding is not dismissed within forty-five
(45) days after commencement, (C) any Company Party or any such Subsidiary shall be adjudicated insolvent or bankrupt or any order of
relief or other order approving any such case or other Proceeding is entered, (D) any Company Party or any such Subsidiary shall generally
not pay its debts as such debts become due, shall admit in writing its inability to pay its debts as they mature or shall make a general
assignment for the benefit of creditors, (E) any Company Party or any such Subsidiary thereof shall call a meeting of its creditors with
a view to arranging a composition, adjustment or restructuring of its debts or (F) any Company Party or any such Subsidiary, by any act
or failure to act, shall expressly indicate its consent to, approval of or acquiescence in any of the foregoing or takes any corporate
or other action (including convening a meeting of the board) to authorize or otherwise for the purpose of effecting any of the foregoing;
xi. the occurrence of
any Change of Control Transaction;
xii. (A) the Common
Stock shall become “penny stock” as defined in Regulations for purposes of 3(a)(51) of the Exchange Act, (B) there shall be
no Trading Market for the Common Stock and the Common Stock shall not be eligible for listing or quotation for trading thereon and shall
not be eligible to resume listing or quotation for trading thereon within five (5) Trading Days or (C) the transfer of shares of Common
Stock through the Depository Trust Company System shall become no longer available or shall be “chilled”;
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xiii. the Company shall
not meet the current public information requirements under Rule 144, and such failure is not cured, if it is possible to cure it, within
two (2) Trading Days after the expiration of the applicable grace period permitted under Rule 12b-25 of the Exchange Act; unless the
Company files a Form 12b-25 for the relevant report required to meet the current public information requirements under Rule 144; or
xiv. the Company shall
fail to deliver Common Stock by the Share Delivery Date upon conversion of any portion of this Note.
The clauses in the definition of “Event of
Default” above operate independently, so that any action or event that falls within any such clause shall constitute an Event
of Default regardless of, whether because of a grace period or threshold or otherwise, it falls outside the language of any other clause.
b) Remedies Upon Event of Default.
If any Event of Default occurs, then the outstanding principal amount of this Note and all other Obligations shall become, at the Holder’s
election in its sole discretion, in whole or in part (or, in the case of and Event of Default described in Section 7(a)(x)(A) through
(C), in whole, automatically and without the need for any notice, demand or any other action by the Collateral Agent or the Holder all
of which are hereby waived), immediately due and payable, in cash (while remaining subject to the Holder’s conversion option). In
connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand,
protest or other notice of any kind (other than the Holder’s election to declare such acceleration), and the Holder may immediately
and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to
it under applicable Regulations. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and
the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this
Section 7(b). No such rescission or annulment shall affect any subsequent Default or Event of Default or impair any right consequent
thereon.
Section
8. Miscellaneous
a) Notices. Any and all
notices or other communications or deliveries to be provided by the Holder hereunder, including any Notice of Conversion, shall be in
writing and delivered as set forth in Section 6.4 (Notices) of the Purchase Agreement. All notices and other communications delivered
hereunder shall be effective as provided in the Purchase Agreement.
b) Absolute Obligation.
Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Note, without set off or counterclaim,
at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company. This
Note ranks pari passu with all other Purchase Agreement Notes now or hereafter issued under the terms set forth in the Transaction
Documents and is at least pari passu with all Indebtedness and other obligations of the Company, and is not subordinated to any
such Indebtedness or other obligation.
c) Lost or Mutilated Note.
If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and
upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal
amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such
Note, and of the ownership hereof, reasonably satisfactory to the Company.
d) Dispute Resolution.
i. In the case of a
dispute relating to, or, when an agreement between the Company and the Holder is required hereunder, an inability to agree on, a Conversion
Price, a Closing Bid Price, a Closing Sale Price, a VWAP or a fair market value (as the case may be) (including, without limitation, a
dispute relating to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the dispute
to the other party via facsimile or electronic transmission (A) if by the Company, within two (2) Trading Days after the occurrence of
the circumstances giving rise to such dispute or (B) if by the Holder at any time after the Holder learned of the circumstances giving
rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute, at any time after the second (2nd)
Trading Day following such initial notice, then the Holder may, at its sole option, select an independent, reputable investment bank to
resolve such dispute.
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ii. The Holder and the
Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance with clause
d) and (B) written documentation (together with such copy of such submission, the “Required Dispute Documentation”)
supporting its position with respect to such dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th)
Trading Day immediately following the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”)
. If either party fails to so deliver all of the Required Dispute Documentation by the Dispute Submission Deadline, then such party shall
no longer be entitled to (and hereby waives its right to) deliver or submit any document or other supporting evidence to such investment
bank with respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation
that was delivered to such investment bank prior to the Dispute Submission Deadline. Unless otherwise agreed to in writing by both the
Company and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver
or submit any written documentation or other support to such investment bank in connection with such dispute other than the Required Dispute
Documentation.
iii. The Company and
the Holder shall ensure that such investment bank determines the resolution of such dispute and notify the Company and the Holder of such
resolution no later than ten (10) Trading Days immediately following the Dispute Submission Deadline. The fees and expenses of such investment
bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final and binding upon
all parties absent manifest error.
e) Governing Law; Courts.
As provided in Section 6.6 (Governing Law; Courts) of the Purchase Agreement, this Note, and all claims, disputes, Proceedings (other
than as set forth in clause (d) above) and matters related hereto or arising hereunder or arising from or relating to the relationship
among any of the parties hereto, are governed by, and shall be construed, interpreted and enforced exclusively in accordance with, the
laws of the State of Delaware (without giving effect to the conflict of laws provisions thereof to the extent such principles or rules
would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware). Any such Proceeding
shall be brought exclusively in the Delaware state courts sitting in Wilmington, DE or the federal courts of the United States of America
for the District of Delaware sitting in Wilmington, DE; provided, that the Collateral Agent, the Holder and the other Purchaser Parties
may bring Proceedings in other jurisdictions to enforce this Note. The parties hereto have accepted such jurisdiction and waived venue
and other objections and have agreed to the means for service of process in such Section 6.6.
f) Characterizations. The
Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein.
Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the
amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company
(or the performance thereof).
g) Payments on Next Business
Day. Whenever any payment Obligation shall be due on a day other than a Business Day, such payment shall be due instead on the next
succeeding Business Day.
h) Payment of Collection, Enforcement
and Other Costs. In addition to, and not in substitution for and not to limit (but without duplication), any other right to reimbursement
under this Note or any other Transaction Document, (i) this Note is placed in the hands of an attorney for collection or enforcement or
is collected or enforced through any Proceeding or the Holder otherwise takes action to collect amounts due under this Note or to enforce
the provisions of this Note or (ii) there occurs any bankruptcy, reorganization, receivership of the Company or other Proceedings affecting
Company creditors’ rights and involving a claim under this Note, then the Company shall pay all out-of-pocket costs incurred by
the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other Proceeding,
including, but not limited to, attorneys’ fees and disbursements.
i) Security Interest. The
Obligations of the Company Parties under this Note and the other Transaction Documents are secured by the Security Agreement and the Intellectual
Property Security Agreement, as well as other Transaction Documents.
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j) Use of Proceeds. All
proceeds of the purchase of this Note and the other Purchased Securities shall be used as provided in the Purchase Agreement.
k) Non-Public Information.
Except with respect to the Transaction Documents and the transactions contemplated thereunder, which shall be disclosed as provided in
the Purchase Agreement, each Company Party covenants and agrees that neither it, nor any other Person acting on its behalf has
provided nor will provide the Holder or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto the Holder shall have consented to the receipt of such information
and agreed with the Company to keep such information confidential. Any non-disclosure agreement entered into with the Holder and any Company
Party are terminated as provided in Section 4.9 (Securities Laws Disclosures) of the Purchase Agreement. The Holder does not have
any duty of confidentiality (or a duty not to trade on the basis of material non-public information) to any Company Party or any of their
Affiliates, or any of their respective officers, directors, agents, members, stockholders, managers, employees and is governed only by
application Regulations. Each Company Party understands and confirms that the Holder shall be relying on all of the foregoing covenants
in trading Securities of the Company.
l) Public Disclosures.
The Company Parties and the Holder shall consult with each other in issuing any other public disclosure with respect to the transactions
contemplated hereby, and no Company Party or the Holder shall issue any such public disclosure nor otherwise make any such public statement
without the prior consent of the Company and the Holder, each of which consent shall not unreasonably be withheld or delayed, except if
such disclosure is reasonably viewed as required by any Regulation, in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication. Notwithstanding the foregoing, no Company Party shall, and each Company
Party shall ensure that their Subsidiaries do not, publicly disclose the name, trademark, service mark, symbol, logo (or any abbreviation,
contraction or simulation thereof) of, or otherwise refer to, the Holder or any other Purchaser Party (including in any filing with the
SEC, regulatory agency or Trading Market for any Securities of any Company Party or their Subsidiaries, including the 8-K filing referenced
above) without the prior consent of the Holder and the Collateral Agent (including in any press release, letterhead, public announcement
or marketing material), except, and then only after consulting with such Holder and the Collateral Agent, to the extent required to do
so under applicable Regulations (including as required in any registration statement filed with the SEC). None of the Company Parties
and their Affiliates shall represent that any Company Party or any of its Affiliates, any product or service of the Company Parties or
their Affiliates, or any know how or policy or practice of the Company Parties or their Affiliates has been approved or endorsed by any
Purchaser Party.
m) Interpretation. This
Note is a Transaction Document and as such is subject to various interpretative, amendment and third party beneficiary and other miscellaneous
provisions set forth in the Purchase Agreement that expressly apply to Transaction Documents, located principally in Article VI (Miscellaneous)
thereof (including Section 4.9 (Securities Law Disclosures) which, among other things, restrict public disclosures of the name
of the Holder, Section 6.15 (Interpretation) that provides, among other things, that payments due on a day that is not a Business
Day may be made on the next Business Day), as well as, without limitation, set off provisions in Section 6.5 (Set Off) thereof
whereby amounts owing hereunder may be set off against amounts owed by the Holder and certain related entities, indemnification and expense
reimbursement provisions in Sections 4.14 (Indemnification of Each Purchaser Party) and 6.2 (Fees and Expenses) thereof
that benefit the Holder, among others. In particular, without limitation, (i) none of the terms or provisions of this Note may be waived,
amended, supplemented or otherwise modified except in accordance with Section 6.3(b) (Amendments) of the Purchase Agreement and
(ii) as described in Section 6.3(a) (Entire Agreement) of the Purchase Agreement, this Note and the other Transaction Documents
contain and constitute the entire agreement of the parties with respect to the subject matter hereof. Any Holder also benefits from various
provisions of the Purchase Agreement applicable to “Purchasers” (whether by virtue of being an “Initial Purchaser”
or successor in interest thereto) and agrees to be bound by the provisions of the Purchase Agreement applicable to it in such capacity,
including Article V (Collateral Agent) thereof that describes its relationship with the Collateral Agent and contains an indemnification
provision in Section 5.9 (Indemnification) thereof. Finally, in addition to these provisions, unless otherwise expressly provided
in any Transaction Document, “outstanding” when referring in any Transaction Document to the principal amount owing
under this Note shall mean “outstanding and unconverted.”
- 29 -
n) Beneficiaries; Successors
and Assigns. As provided in Section 6.3(c) (Beneficiaries; Successors and Assigns) of the Purchase Agreement, this Note shall
be binding upon the successors and assigns of the Company and shall inure solely to the benefit of the Holder, each Company Party, the
Collateral Agent, each of their Purchaser Parties and their respective successors and, if permitted, assigns; provided, that no
Company Party may assign any part of this Note, or any right, obligation, benefit, title or interest hereunder except as authorized in
the Purchase Agreement.
o) Counterparts. As provided
in clauses (e) (Counterparts) and (f) (Electronic Signatures) of Section 6.3 of the Purchase Agreement, this Note may be
executed in any number of counterparts, which may be signed and transmitted electronically.
p) Severability. As provided
in Section 6.7 (Severability) of the Purchase Agreement, any provision of this Note being held illegal, invalid or unenforceable
in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this
Note or any part of such provision in any other jurisdiction, so long as the economic or legal substance of the transaction contemplated
hereby is not affected in any manner adverse to any party.
q) Waiver of Jury Trial. As
provided in Section 6.16 (Waiver of Jury Trial and Certain Other Rights), each party hereto has irrevocably and unconditionally waived,
to the fullest extent permitted by applicable Regulations, trial by jury of any claim or cause of action or in any Proceeding, directly
or indirectly with respect to, or directly or indirectly based upon or arising out of, under or in connection with this Note or any other
Transaction Document or the transactions contemplated therein or related thereto (whether founded in contract, tort or any other theory).
Each party hereto (A) certifies that no other party, no Purchaser Party and no Affiliate of any of them and no attorney, agent or other
representative of any of the foregoing has represented, expressly or otherwise, that any Person would not, in the event of litigation,
seek to enforce the foregoing waiver and (B) acknowledges that it and the other parties hereto have been induced to enter into this Note
by, among other things, the mutual waivers and certifications in this Section 8(q).
[Signature
Pages Follow]
- 30 -
In witness
whereof, each of the undersigned has duly executed this Note as of the date first written above.
PROFUSA INC.
By
Name:
Title:
Accepted and Agreed:
[ASCENT PARTNERS FUND LLC]
By:
Name:
Title:
Address:
- 31 -
ANNEX A
NOTICE OF CONVERSION
The undersigned hereby elects
to convert principal under the Senior Secured Convertible Promissory Note (as the same may be amended or otherwise modified from time
to time, the “Note”; capitalized terms used but not defined herein are used as defined in the Note, including if defined
by reference to other agreements), due _________ and issued by Profusa Corp, a Delaware corporation (together with its successors
and, if permitted, assigns, the “Company”), into shares of common stock (the “Common Stock”), of
the Company according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of
a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith
such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the Holder for
any conversion, except for such transfer taxes, if any.
By the delivery of this Notice
of Conversion the undersigned represents and warrants to the Company that its ownership of the Common Stock does not exceed the amounts
specified under Section 4 of the Note, as determined in accordance with Section 13(d) of the Exchange Act.
The undersigned agrees to comply
with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares
of Common Stock.
Conversion calculations:
Date to Effect Conversion:
Principal Amount of Note to be Converted:
Payment of Interest in Common Stock __ yes __ no
If yes, $_____ of Interest Accrued on Account of Conversion
at Issue.
Number of shares of Common Stock to be issued:
This Notice of Conversion is a Transaction Document
and, as such is subject to various provisions of the Purchase Agreement applicable to Transaction Documents, including, among others,
choice of law, forum, and waiver of jury trial.
By:
Name:
Title:
Delivery Instructions:
- 32 -
Schedule
1
CONVERSION SCHEDULE
This Conversion Schedule is part of, and reflects conversions
made under Section 4 of, the Senior Secured Convertible Promissory Note, due on __________5 and issued by Profusa Inc, a Delaware
Corporation, in the original principal amount of $__________.
Dated:
Date of Conversion
(or for first entry, Original Issue Date)
Amount of Conversion
Aggregate Principal Amount Remaining Subsequent to Conversion
(or original Principal Amount)
Company Attest
5 Insert date that is 18 months after Original Issue Date
- 33 -
Schedule
2
Payment
Schedule
Month
Date
Principal
Interest
If in Stock
If in Cash
Remaining Principal
Current Month (Stub period)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
- 34 -
EXHIBIT
a-2
FORM
OF NOTE TO THE SECURITIES PURCHASE AGREEMENT issuable in additional closings
(SEE ATTACHED)
- 35 -
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES REGULATIONS AND, ACCORDINGLY, MAY NOT BE SOLD, OFFERED
FOR SALE OR PLEDGED AS SECURITY IN THE ABSENCE OF SUCH REGISTRATION WITHOUT RELIANCE ON AN EXEMPTION UNDER THE SECURITIES ACT AND COMPLIANCE
WITH APPLICABLE STATE SECURITIES REGULATIONS.
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”).
PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), [NAME], A REPRESENTATIVE OF THE COMPANY WILL, BEGINNING TEN DAYS AFTER THE ISSUANCE
DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION §1.1275-3(b)(1)(i).
[NAME] MAY BE REACHED AT (___) ___-____, ___@____________.
SENIOR
SECURED CONVERTIBLE PROMISSORY NOTE
DUE
______________ 20_1
Original Issue Date: ____________
Principal Amount: $__________
Purchase Price: $__________
This Senior Secured Convertible Promissory Note is one of a
series of duly authorized and validly issued Senior Secured Convertible Promissory Notes of Profusa, Inc. (formerly known as, Northview
Acquisition Corp.), a Delaware corporation, (the “Company”), designated as its Senior Secured Convertible Promissory
Note due _______, 20__2 (this “Note” and,
collectively with the other Notes of such series, the “Notes”), issued and sold by the Company pursuant to the Securities
Purchase Agreement, dated as of February 11, 2025, by and among the Company, and Ascent Partners Fund LLC (together with its successors
and registered assigns, the “Holder”), a Delaware limited liability company (as amended, restated or supplemented from
time to time, the “Purchase Agreement”). Capitalized terms used but not otherwise defined herein are used as defined
in the Purchase Agreement on the date hereof, with such amendments as may be acceptable to the Holder in its sole discretion). This Note
is entered into pursuant to the Purchase Agreement and is subject to the terms and conditions thereof.
FOR VALUE RECEIVED, the Company promises to pay to the order
of the Holder the principal amount first written above on ______________3
(the “Maturity Date”) in full in cash or on such earlier date as this Note is required or permitted to be repaid as
provided hereunder, in each case together with all accrued but unpaid interest thereon and all other Obligations (as defined below), and
otherwise to pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note and such other
Obligations in accordance with the provisions hereof. Amounts repaid will not be advanced again.
This Note is subject to the following additional
provisions:
Section
1. Definitions
For the purposes hereof, in addition to terms defined elsewhere in
this Note or not defined in this Note but defined in the Purchase Agreement, the following terms shall have the following meanings:
“Alternate Consideration” has
the meaning specified in Section 5(e).
“Attribution Parties” has the
meaning specified in Section 4(d).
“Base Share Price” has the meaning
specified in Section 5(c).
1 Insert date that is 12 months following Original Issue Date
2 Insert date that is 12 months following Original Issue Date
3 Insert date that is 12 months following Original Issue Date
- 36 -
“Beneficial Ownership Limitation”
has the meaning specified in Section 4(d).
“Buy-In” has the meaning specified
in Section 4(c)(vii).
“Capital Lease” means, as applied
to any Person, any lease of, or other arrangement conveying the right to use, any property (whether real, personal or mixed) by that Person
as lessee that, in conformity with U.S. generally accepted accounting principles (GAAP) consistently applied, is or should be accounted
for as a capital lease on the balance sheet of that Person.
“Capital Stock” means any share,
participation or other equivalent (however designated) of the capital stock of a corporation, any equivalent ownership interest in any
other Person, including partnership interests and membership interests, and any warrant, right or option to purchase or other arrangement
(including through a conversion or exchange of any other property) to acquire or subscribe for any item otherwise satisfying the definition
of “Capital Stock,” whether or not presently convertible, exchangeable or exercisable.
“Cash Payment Fee” has the meaning
specified in Section 2(g).
“Change of Control” means the
occurrence of any of the following: (a) any Person or group of Persons (within the meaning of the Exchange Act) shall have acquired legal
or beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of (i) 50% prior to any initial public offering
of the Common Stock and (ii) 20% thereafter or more of the issued and outstanding Voting Stock of any Company Party (whether on an as
converted, fully diluted basis or without taking into account any potential conversion or dilution of Stock Equivalents), other than by
acquiring such Common Stock directly in an offering made to the general public, (b) during any period of twelve consecutive calendar months,
individuals who, at the beginning of such period, constituted the board of directors of the Company (together with any new directors whose
election by the board of directors of the Company or whose nomination for election by the stockholders of the Company was approved by
a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose
elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority
of the directors then in office or (c) the Company shall cease to own and control all of the economic and voting rights associated with
all of the outstanding Stock of the other Company Parties.
“Closing Bid Price” and “Closing
Sale Price” means, for any Security as of any date:
(i) the last closing bid price and last
closing trade price, respectively, for such Security on the Principal Trading Market for such Security, as reported by Bloomberg; or
(ii) if such Principal Trading Market
begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may
be), then the last bid price or last trade price, respectively, of such Security prior to 4:00:00 p.m., New York time, as reported by
Bloomberg; or
(iii) if such Security no longer trades
on its Principal Trading Market, then the last closing bid price or last trade price, respectively, of such Security on the principal
Trading Market where such Security is listed or traded as reported by Bloomberg; or
(iv) if such Security no longer trades
on a Trading Market, the last closing bid price or last trade price, respectively, of such Security in the over-the-counter market on
the electronic bulletin board for such Security as reported by Bloomberg; or
(v) if no closing bid price or last trade
price, respectively, is reported for such Security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any
market makers for such Security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC); or
(vi) if the “Closing Bid Price”
or the “Closing Sale Price” cannot be calculated for a Security on a particular date based on the foregoing, the “Closing
Bid Price” and the “Closing Sale Price” of such Security on such date shall be the fair market value as mutually
determined by the Company and the Holder; or
- 37 -
(vii) if the Company and the Holder are
unable to agree upon the fair market value of such Security, then such dispute shall be resolved, and such fair market value (and therefore
the “Closing Bid Price” and “Closing Sale Price”) shall be determined, in accordance with the procedures
set forth in Section 8(d).
All such determinations shall be appropriately adjusted for
any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such period.
“Common Stock” means the common
stock of the Company, par value $0.0001 per share, and any other Capital Stock into which such shares of common stock may hereafter be
changed or any share capital resulting from a reclassification of such common stock.
“Conversion” has the meaning
specified in Section 4.
“Conversion Date” has the meaning
specified in Section 4(a).
“Conversion Price” has the meaning
specified in Section 4(b).
“Conversion Schedule” means
the Conversion Schedule in the form of Schedule 1.
“Conversion Shares” means, collectively,
the shares of Common Stock issuable upon conversion of this Note in accordance with the terms hereof, including shares of Common Stock
issued upon conversion or redemption, of this Note, and shares of Common Stock issued and issuable in lieu of the cash payment of interest
on this Note in accordance with the terms of this Note.
“Customary Permitted Liens”
means all of the following, for any Person:
(i) Liens securing the payment of taxes,
assessments or other charges or levies imposed by any Governmental Authority which are either not yet overdue or the validity of which
are being contested in good faith by appropriate proceedings diligently pursued and with respect to which adequate reserves have been
set aside on such Person’s books;
(ii) non-consensual statutory Liens (other
than Liens securing the payment of taxes) arising in the ordinary course of business to the extent (A) such Liens secure Indebtedness
that is not overdue for a period of more than 30 days or (B) such Liens secure Indebtedness relating to claims or liabilities that are
fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested in good faith by
appropriate proceedings diligently pursued, in each case prior to the commencement of foreclosure or other similar proceedings and with
respect to which adequate reserves have been set aside on such Person’s books;
(iii) zoning, building and land use restrictions,
easements, servitudes, encumbrances, licenses, covenants and other restrictions affecting the use of real property or minor defects or
irregularities in title thereto that do not interfere in any material respect with the use of such real property or the ordinary conduct
of the business of the Company and its Subsidiaries as presently conducted thereon or materially impair the value of the real property
that may be subject thereto;
(iv) pledges and deposits of cash in
the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security
benefits consistent with current practices as in effect on the date hereof;
(v) undetermined or inchoate Liens and
charges arising or potentially arising under statutory provisions which have not at the time been filed or registered in accordance with
applicable Regulation or of which written notice has not been duly given in accordance with applicable Regulation or which although filed
or registered, relate to obligations not due or delinquent, including without limitation statutory Liens incurred, or pledges or deposits
made, under worker’s compensation, employment insurance and other social security legislation;
- 38 -
(vi) Liens or deposits to secure the
performance of bids, tenders, expropriation proceedings, trade contracts, leases, statutory obligations, surety and performance bonds
and other obligations of a like nature (other than for borrowed money), and deposits to secure equipment contracts, in each case incurred
in the ordinary course of business;
(vii) appeal bonds;
(viii) landlord Liens for rent not yet
due and payable;
(ix) Liens arising from operating leases
and the precautionary UCC financing statement filings in respect thereof;
(x) judgments and other similar Liens
arising in connection with court proceedings that do not constitute a Default or Event of Default; provided, that, (A) such Liens
are being contested in good faith and by appropriate proceedings diligently pursued, (B) adequate reserves or other appropriate provision,
if any, as are required by U.S. generally accepted accounting principles, consistently applied, have been made therefor and (C) a stay
of enforcement of any such Liens is in effect; and
(xi) customary rights of set-off or combination
of accounts in favor of a financial institution with respect to deposits maintained by such Person.
“Default” means any event which,
with the passing of time or the giving of notice or both, would become an Event of Default.
“Default Rate” means twenty-four
percent (24%) per annum.
“Derivative” means (a) any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement
or arrangement, (b) any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement, (c) any futures or forward contract, spot transaction, commodity swap, purchase or option agreement,
other commodity price hedging arrangement, cap, floor or collar transaction, any credit default or total return swap, and (d) any other
derivative instrument, any other similar speculative transaction and any other similar agreement or arrangement designed to alter the
risks of any Person arising from fluctuations in any underlying variable, including interest rates, currency values, insurance, catastrophic
losses, climatic or geological conditions or the price or value of any other derivative instrument. For the purposes of this definition,
“derivative instrument” means “any derivative instrument” as defined in Statement of Financial Accounting Standards
No. 133 (Accounting for Derivative Instruments and Hedging Activities) of the United States Financial Accounting Standards Board, and
any defined with a term similar effect in any successor statement or any supplement to, or replacement of, any such statement.
“Dilutive Issuance” has the
meaning specified in Section 5(c).
“Dilutive Issuance Notice” has
the meaning specified in Section 5(c).
“Dispute Submission Deadline” has
the meaning specified in Section 8(d)(i).
“DTC” means the Depository Trust
Company.
“DTC/FAST Program” means the
DTC’s Fast Automated Securities Transfer Program.
“DWAC Eligible” means that (a)
the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements, including 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 Conversion Shares are otherwise eligible for delivery via DWAC, and (e) the Transfer
Agent does not have a policy prohibiting or limiting delivery of the Conversion Shares via DWAC.
- 39 -
“Equity Payment Conditions”
means, as of any date, (a) no Default or Event of Default is continuing, (b) the Common Stock is trading on its Principal Trading Market
and all of the Conversion Shares are listed or quoted for trading in such Principal Trading Market and comply with all of the conditions
for such listing or quotations (and the Company reasonably believes that trading of the Common Stock on such Principal Trading Market
will continue uninterrupted, and shall continue to comply with the conditions for listing or quotation for trading in such Principal Trading
Market, for the 180 days following such date), (c) the Company has timely filed (or obtained extensions in respect thereof and filed within
the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act and the
Company has met the current public information requirements of Rule 144(c) under the Securities Act as of the end of the period in question,
(d) the average daily dollar trading volume of the Common Stock for the twenty (20) full Trading Days preceding such date exceeds at least
12.5% of the aggregate “Initial Principal Amounts” of all of the Purchase Agreement Notes, (e) the Company shares of common
stock are DWAC Eligible and not subject to a “DTC chill,” and (f) the Common Stock does not constitute “penny stock”
under and as defined in the Exchange Act and the corresponding Regulation, and (g) all Conversion Shares are freely tradeable and registered
under the Securities Act for unrestricted resale.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap” has the meaning
specified in Section 4(e).
“Exchange Cap Allocation” has
the meaning specified in Section 4(e).
“Exchange Cap Shares” has the
meaning specified in Section 4(e).
“Event of Default” has the meaning
specified in Section 7(a).
“Floor Price” means an amount
per share of Common Stock equal to twenty percent (20%) of the Closing Sale Price of the Common Stock on the Principal Trading Market
on the Amendment Effective Date. Notwithstanding anything herein to the contrary, the Conversion Price shall at no time be less than the
Floor Price.
“Fundamental Transaction” means
any of the following transactions, whether effected directly or indirectly or through on or a series of related transactions: (i) any
merger or consolidation of the Company, (ii) any merger or consolidation of any other Company Party with or into another Person that is
not a Company Party; (iii) any Sale or license of any right, title or interest in the assets of any Company Party, other than to a Company
Party and other than transactions in the ordinary course of business and transactions that, individually or in the aggregate, affect less
than 10% of the market value of the consolidated assets of the Company Parties, (iv) the completion of any purchase offer, tender offer
or exchange offer (whether by the Company or another Person) pursuant to which holders of Common Stock Sell, tender or exchange their
shares for other Securities, cash or property, and (v) any other corporate reorganization, Securities purchase or other business combination
involving the Company or, if all surviving entities are not a Company Party, any other Company Party, including any spin-off or scheme
of arrangement of any Company Party, any reorganization, recapitalization or reclassification of the Common Stock, any compulsory share
exchange pursuant to which the Common Stock is effectively converted into or exchanged for other Securities, cash or other assets.
“Late Fee” has the meaning specified
in Section 2(f).
“Mandatory Prepayment Amount”
has the meaning specified in Section 2(b).
“Minimum Interest Amount” means
12% of the Initial Principal Amount of this Note, which amounts represents a full year of interest payments hereunder; provided,
that such amount shall be reduced by the amount of interest accrued hereunder on the principal amount of this Note.
“Note Register” has the meaning
specified in Section 3(c).
- 40 -
“Notice of Conversion” has the
meaning specified in Section 4(a).
“Obligations” means all amounts,
indebtedness, obligations, liabilities, covenants and duties of every type and description owing by any Company Party from time to time
to the Holder, the Collateral Agent or any of their Purchaser Parties under this Note or any other Transaction Document, whether direct
or indirect, joint or several, absolute or contingent, due or to become due, liquidated or unliquidated, secured or unsecured, now existing
or hereafter arising and however acquired (regardless of whether acquired by assignment), whether or not evidenced by any note or other
instrument or for the payment of money, including, without duplication, (i) the principal amount of the Note owing by the Company or any
other Company Party (including any Mandatory Prepayment Amount, any Optional Prepayment Amount and any Minimum Interest Amount owing hereunder),
(ii) all other amounts, fees (including all Late Fees and any Cash Payment Fees), interest (including the Minimum Interest Amount and
interest accruing at the Default Rate), liquidated damages, commissions, charges, costs, expenses, attorneys’ fees and disbursements,
indemnities (including Losses and other amounts for which any Company Party is required to indemnify the Collateral Agent, the Holder,
or any of their Purchaser Parties under the Purchase Agreement), reimbursement of amounts paid and other sums chargeable to any Company
Party under any Transaction Document or otherwise arising under any Transaction Document and (iii) all interest on any item otherwise
qualifying as “Obligation” hereunder, whether or not accruing after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or similar proceeding, whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding.
“Optional Prepayment Amount”
means, at any time with respect to any principal amount, the sum of (a) one hundred (100%) of such principal amount and all accrued interest
hereon outstanding as of such time (including any Minimum Interest Amount remaining outstanding on such principal amount as of such time)
and (b) all other amounts, costs, fees (including Late Fees and Cash Payment Fees), expenses, indemnification and liquidated and other
damages and other amounts due to the Holder, the Collateral Agent or any of their Purchaser Parties in respect of this Note or any other
Transaction Document.
“Original Issue Date” means
the date of the first issuance of this Note, regardless of any transfers of any Note and regardless of the number of instruments which
may be issued to evidence such Note.
“Permitted Debt” means all of
the following: (i) Indebtedness owing to any Secured Party under any Transaction Document; (ii) unsecured intercompany Indebtedness between
the Company and its Subsidiaries in the ordinary course of business; (iii) unsecured Indebtedness of the Company or any of its Subsidiaries
to trade creditors (including overdue amounts on invoices) incurred on customary terms in the ordinary course of business; (vi) Indebtedness
of the Company or any Subsidiary under Capital Leases for equipment or Indebtedness of the Company or any Subsidiary secured by a Purchase
Money Lien, which Indebtedness shall not at any time exceed $50,000 in the aggregate for the Company and its Subsidiaries; and (vii) Indebtedness
of the Company or any of its Subsidiaries under leases for facilities that are treated as Capital Leases under GAAP.
“Permitted Liens” means (i)
the Liens of the Secured Parties as provided for in any Transaction Document; (ii) Customary Permitted Liens of the Company Parties; and
(iii) Purchase Money Liens granted to or held by Purchase Money Lien lenders in connection with the purchase, leasing or acquisition of
capital equipment in the ordinary course of business and without resulting in a contravention of any applicable provisions of this Note.
“Purchase Agreement Notes” means
all “Notes” issued under, and as defined in, the Purchase Agreement.
“Purchase Money Lien” means
any Lien securing Indebtedness (i) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase
price of such equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment or (ii)
existing on such equipment at the time of its acquisition, in each case provided, that the Lien is confined solely to the property so
acquired and improvements thereon, and the proceeds of such equipment.
“Required Dispute Documentation”
has the meaning specified in Section 8(d)(i).
- 41 -
“Secured Parties” means the
Holder, the Collateral Agent and each other holder of Purchased Securities, each beneficiary of any indemnification or reimbursement obligation
by any Company Party under the Purchase Agreement or any other Transaction Document.
“Share Delivery Date” has the
meaning specified in Section 4(c)(ii).
“Subsequent Offering” has the
meaning specified in Section 2(b).
“Successor Entity” has the meaning
specified in Section 5(e).
“VWAP” means, for or as of any
date for any Security, the following:
(i) the dollar volume-weighted average
price for such Security on the Principal Trading Market for such Security during the period beginning at 9:30:01 a.m., New York time,
and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average); or,
(ii) if Bloomberg does not report such
a price, the dollar volume-weighted average price of such Security in the over-the-counter market on the electronic bulletin board for
such Security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg;
or
(iii) if no dollar volume-weighted average
price is reported for such Security by Bloomberg for such hours, the average of the highest Closing Bid Price and the lowest Closing Ask
Price of any of the market makers for such Security on such date as reported in the “pink sheets” by OTC Markets Group Inc.
(formerly Pink Sheets LLC); or
(iv) if the VWAP cannot be calculated
for such Security on such date on any of the foregoing bases, the VWAP of such Security on such date shall be the fair market value as
mutually determined by the Company and the Holder.
All such determinations shall be appropriately adjusted for any stock
dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
SECTION 2. REPAYMENT
a) Principal. The Company shall pay to the
order of the Holder the principal amount first written above on the Maturity Date in full in cash or on such earlier date as this Note
is required or permitted to be repaid as provided hereunder, in each case together with all accrued but unpaid interest thereon and all
other Obligations (as defined below). In addition, the Company shall pay in full on the Maturity Date all remaining Obligations then outstanding.
b) Mandatory Prepayments. On the next Business
Day following the Company consummating any public or private offering or any other issuance of any Capital Stock or any other issuance
of any Capital Stock (other than any issuance of Common Stock to the general public), Stock Equivalents or of any other Securities or
Indebtedness (including entering into any Equity Line of Credit or issuing any Variable-Priced Equity-Linked Instrument) or any other
debt or equity financing or capital-raising transaction of any kind (each, a “Subsequent Offering”) on any date other
than the Maturity Date, the Company shall, subject to the Holder’s conversion rights set forth herein, to repay the Obligations
pay to the Holder in cash an amount equal (each, a “Mandatory Prepayment Amount”) (i) in the case of a Subsequent Offering
other than an Equity Line of Credit, 50% of the net proceeds of such Subsequent Offering and (ii) in the case of Subsequent Offering that
is an Equity line of Credit, 50% of the net proceeds, with respect to shares of Common Stock registered under the registration statement
on Form S-1 (File No. 333-290805) or 50.0% of the net proceeds, with respect to shares of Common Stock registered under any registration
statement on Form S-1 filed after the date hereof). The Holder may continue to convert the principal amounts to be prepaid under this
Note until the date of consummation of such Subsequent Offering. This Section 2(b) is merely a requirement to redeem this Note and not
an authorization to consummate any Subsequent Offering otherwise prohibited by the Transaction Documents.
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c) Voluntary Prepayments. So long as no
Default or Event of Default exists, at any time upon ten (10) Business Days’ prior written notice to the Holder (which notice shall
be a Transaction Document and constitute an irrevocable agreement to pay such amount on the date set forth on such notice) stating the
proposed date and proposed principal amount of such prepayment, but subject to the Holder’s conversion rights set forth herein,
the Company may prepay any portion of the principal amount of this Note, any accrued and unpaid interest, and any other amounts due under
this Note. If the Company exercises its right to prepay the Note, instead of such principal amount, the Company shall pay to the Holder
in cash an amount equal to the full Optional Prepayment Amount for such principal amount prepaid. The Holder may continue to convert the
principal amount of the Note to be prepared after the date notice of the prepayment is given until the date it receives such Optional
Prepayment Amount in full in cash.
d) Interest. The Company shall pay interest
to the Holder on the aggregate then-outstanding principal amount of this Note (and the then-outstanding principal amount of any other
Obligation owing that does not expressly provide for any other rate of interest), which shall accrue daily at the rate of twelve percent
(12%) per annum from the date this Note is issued (or in the case of any other Obligation, from the date such obligation becomes due and
payable) through the date such principal amount or other Obligation is paid in full; provided, that the Minimum Interest Amount
shall be fully earned and accrued on the Original Issue Date. Accrued interest shall replace and not add to the Minimum Interest Amount
and all payments of such accrued interest shall cause a corresponding reduction in any remaining Minimum Interest Amount. Accrued and
unpaid interest shall be due and payable in cash on the first day of each calendar month and on the Maturity Date, or as otherwise set
forth herein. Any interest accrued and unpaid on any principal amount, and any remaining Minimum Interest Amount on such principal amount,
shall be due and payable upon any repayment of such principal amount under this Note. Upon an Event of Default, the interest rate set
forth hereunder shall increase as provided in clause (e) below. The Minimum Interest Amount is intended to compensate the Holder
for a lesser profit in case of early repayment and for the internal and external work and expenditure of time and money involved in the
evaluation and preparation of the Transaction Documents and the consummation of the transactions contemplated thereunder. The Minimum
Interest Amount is not to be construed to cover or be applied against any indemnity or any out-of-pocket fees, costs or expenses incurred
in any action to collect any Obligation or to foreclose any Lien securing the same. This provision shall not affect or limit the Holder’s
rights or remedies with respect to any Event of Default.
e) Default Rate. Immediately on and after
the occurrence of any Event of Default, without need for notice or demand all of which are waived, interest on this Note shall, in whole,
automatically and without the need for any notice, demand or any other action by the Collateral Agent or the Holder all of which are hereby
waived, accrue and be owed daily at an increased interest rate equal to the lower of the Default Rate or the maximum rate permitted under
applicable Regulations. If an Event of Default (after giving effect to notice periods and grace periods) occurs, the Default Rate shall
become effective as of the date the Default that because such Event of Default first occurred, without consideration for any notice provision
or grace period.
f) Late Fee. The Company shall pay a late
fee (each a “Late Fee”) on any Obligation that is not paid when due (after taking into account applicable grace periods
set forth in Section 7(a)(i) hereof), in an amount equal to ten percent (10%) of such payment, to the Person owed such Obligation. This
Late Fee shall be due and payable immediately upon such failure. It is intended to cover the inconvenience and additional internal, administrative
and other fees, costs and expenses involved in processing delinquent payments and is not to be construed to cover or be applied against
any indemnity or any out-of-pocket fees, costs or expenses incurred in any action to collect any Obligation or to foreclose any Lien securing
the same. This provision shall not affect or limit the Holder’s rights or remedies with respect to any Event of Default. This obligation
to pay a Late Fee is a separate obligation and, once it has arisen hereunder, a failure to pay such Late Fee will not be cured implicitly
by any waiver of any Event of Default or similar event that may have caused the payment that gave rise to such Late Fee.
g) Cash Payment Fee. The Company shall pay
a cash payment fee (each a “Cash Payment Fee”) in an amount equal to five percent (5%) of the amount of any repayment
of the principal amount of this Note that is made in cash at any time when (i) the Company shall not have received a notice from the Holder
or the Collateral Agent that an Event of Default exists, or (ii) the Company shall have received such a notice and such Event of Default
shall have been cured to the satisfaction of the Holder. This Cash Payment Fee shall be due and payable together with such repayment and
is intended to cover any loss in revenues resulting from such repayment being made in cash instead of using Common Stock, as well as other
internal costs and expenses and is not to be construed to cover or be applied against any indemnity or any out-of-pocket fees, costs or
expenses incurred in any action to collect any Obligation or to foreclose any Lien securing the same. The Cash Payment Fee shall not be
applicable to the payment of any Mandatory Prepayment Amount. This provision shall not affect or limit the Holder’s rights or remedies
with respect to any Event of Default. This obligation to pay a Cash Payment Fee is a separate obligation hereunder and, once arisen, shall
be owed regardless of whether such payment is later returned, reversed, forgiven, waived or voided.
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h) Calculations and Payment Provisions.
All payments made to the Holder, the Collateral Agent and their Purchaser Parties under any Transaction Document, except as otherwise
expressly provided in any Transaction Document, shall be made in cash, which shall mean in immediately available dollars and without set
off or counterclaim. Interest and fees owing to any of them shall be calculated on the basis of a 360-day year consisting of twelve thirty
(30)-day periods, for the actual number of days occurring, in whole or in part, in the applicable period. The Holder (or, for payments
owing to it, the Collateral Agent) shall have the option to refuse or accept, in their sole discretion, any payment to the Collateral
Agent, the Holder or their Purchaser Parties attempted to be made without a required notice, without a required Optional Prepayment Amount,
a Minimum Interest Amount or a required fee. The Holder (or, for payments owing to the Collateral Agent, the Collateral Agent) may, in
its sole discretion, apply or recharacterize any payment made under any Transaction Document to the payment of any outstanding Obligation,
regardless of the intended characterization thereof by any Company Party, including by recharacterizing a payment of principal made to
a payment of an Optional Prepayment Amount, a Minimum Interest Amount or a required fee, even if this characterization results in a smaller
payment of principal. The Company hereby irrevocably waives the right to direct the application of any payment (or, after any Event of
Default, any proceeds of Collateral) to any Obligation. Whenever any payment under any Transaction Document shall be stated to be due
on a day other than a Business Day, such payment shall be due on the next succeeding Business Day, including for purposes of the calculation
of interest and fees. Any payment of any Obligation received by the Holder, the Collateral Agent or any Purchaser Party after 3 p.m. on
any day shall be deemed received on the next Business Day. Each determination by the Holder (or, for payments owing to it, the Collateral
Agent) of an amount of interest or fee due hereunder shall be conclusive and binding for all purposes, absent manifest error.
Section
3. Registration of Transfers and Exchanges
a) Different Denominations. This Note is
exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested by the Holder surrendering
the same. No service charge will be payable for such registration of transfer or exchange.
b) Investment Representations. This Note
has been issued subject to certain investment representations of the original Holder and may be transferred or exchanged only in compliance
with applicable federal and state securities Regulations.
c) Reliance on Note Register. The Company
shall maintain in its records a list of the Holders and of registration and transfers of the Note (the “Note Register”).
The initial Holder is listed herein. Any Holder may later notify in writing the Company of an assignment or transfer and the Company shall
notify such transfer in the Note Register. Failure by the Company to duly notify such transfer in the Note Register shall not affect the
validity of such assignment or transfer. Nevertheless, if the Company has not received notice of any transfer of this Note, the Company
and any agent of the Company may treat the Person in whose name this Note is duly registered as the owner hereof for the purpose of receiving
payment as herein provided and for all other purposes, whether or not this Note is overdue. Upon request by the Holder, the Company shall
immediately execute and deliver to such Holder replacement Note or Notes, which may involve executing multiple Notes with split amounts
to reflect partial assignments. Promptly upon receipt of such replacement Note or Notes, such Holder shall deliver the original Note back
to the Company or, if the original Note is lost or stolen, provide an affidavit to the Company to that effect.
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Section
4. Conversion
a) Voluntary Conversion. At any time after
the Original Issue Date, all Obligations with respect to this Note shall be convertible, in whole or in part, into shares of Common Stock
at the option of the Holder, in its sole discretion, at any time and from time to time (subject to the conversion limitations set forth
in Section 4(d)). The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of which is
attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the amount of such Obligations
to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion
Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered
hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required to physically surrender
this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been converted.
Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note by an amount equal to the applicable
conversion. The Holder and the Company shall maintain a Conversion Schedule, containing at a minimum the information shown on Schedule
1, and showing historically, among other things, the principal amounts converted and the date of such conversions. The Company may
deliver an objection to any Notice of Conversion within one (1) Business Day of delivery of such Notice of Conversion. In the event of
any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error.
b) Conversion Price. Subject to the other
provisions of this Note, the conversion price in effect on any Conversion Date (the “Conversion Price”) shall be equal
to $0.50, subject to adjustment as provided herein; provided, that in no event shall the Conversion Price be less than the Floor Price.
c) Mechanics of Conversion.
i. Conversion Shares Issuable Upon
Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient
obtained by dividing (x) the outstanding principal amount and interest of this Note to be converted by (y) the Conversion Price.
ii. Delivery of Certificate Upon Conversion.
Not later than one (1) Trading Day after each Conversion Date (the “Share Delivery Date”), the Company shall deliver,
or cause to be delivered, to the Holder a certificate or certificates representing the Conversion Shares which, on or after the date on
which such Conversion Shares are eligible to be sold under Rule 144 without the need for current public information and the Company has
received an opinion of counsel to such effect, which such opinion must be acceptable to the Holder in its sole and absolute discretion
(which opinion the Company shall be responsible for obtaining at its sole cost and expense) shall be free of restrictive legends and trading
restrictions, representing the number of Conversion Shares being acquired upon the conversion of this Note. Each certificate required
to be delivered by the Company under this Section 4(c) shall be delivered electronically through the Depository Trust Company or
another established clearing corporation performing similar functions. If the Conversion Date is prior to the date on which such Conversion
Shares are eligible to be sold under Rule 144 without the need for current public information, or there is no registration statement in
effect covering the Conversion Shares, the Conversion Shares shall bear a restrictive legend in the following form, as appropriate:
“THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES REGULATIONS.
THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE
HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144 OR
RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR
OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
Notwithstanding the foregoing, commencing on such date that
the Conversion Shares are eligible for sale under Rule 144 subject to current public information requirements, the Company, upon written
request and at the sole cost and expense of the Company, shall obtain a legal opinion that is acceptable to the Holder in its sole and
absolute discretion, to allow for such sales under Rule 144.
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iii. Reservation of Conversion Shares.
The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock a
number of shares of Common Stock at least equal the Reserve Amount for the sole purpose of issuance upon conversion of this Note and payment
of interest on this Note, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons
other than the Holder (and the other holders of the Purchase Agreement Notes). The Company covenants that all shares of Common Stock that
shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable. The Company shall calculate
and readjust the Reserve Amount on the first Business Day of each month so long as any Purchased Security remains outstanding.
iv. Fractional Shares. No fractional
shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the
Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in
respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.
v. Transfer Taxes and Expenses.
The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge to the Holder hereof
for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates, provided,
that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery
of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the Company shall not be
required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid. The Company
shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion
vi. Failure to Deliver Certificates.
If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed by the applicable Holder
by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time on or before its receipt
of such certificate or certificates, to rescind such Conversion, in which event the Company shall promptly return to the Holder any original
Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates issued to the Holder pursuant
to the rescinded Notice of Conversion.
vii. Obligation Absolute; Partial
Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance
with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, the existence
of any Default or Event of Default, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any
Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged
breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation of Regulations by the
Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the
Holder in connection with the issuance of such Conversion Shares; provided, that such delivery shall not operate as a waiver by
the Company of any such action the Company may have against the Holder. In the event the Holder of this Note shall elect to convert any
or all of the outstanding principal or interest amount hereof, the Company may not refuse conversion based on any claim that the Holder
or anyone associated or affiliated with the Holder has been engaged in any violation of Regulation, Contractual Obligation or for any
other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note
shall have been sought. If the injunction is not granted, the Company shall promptly comply with all conversion obligations herein. If
the injunction is obtained, the Company must post a surety bond for the benefit of the Holder in the amount of one hundred fifty percent
(150%) of the outstanding principal amount of this Note, which is subject to the injunction, which bond shall remain in effect until the
completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Holder to the extent
it obtains judgment. In the absence of seeking such injunction, the Company shall issue Conversion Shares (or, where applicable and required
hereunder, cash), upon a properly noticed conversion. If the Company fails for any reason to deliver to the Holder such certificate or
certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the Holder, in cash, as liquidated
damages and not as a penalty, $1,000 per Trading Day for each Trading Day after such Share Delivery Date until such certificates are delivered
or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages or declare an Event of
Default pursuant to Section 7 for the Company’s failure to deliver Conversion Shares within the period specified herein and
the Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including a decree of specific performance
and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder from seeking to enforce damages pursuant to any
other Section hereof or under applicable Regulation.
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viii. Compensation for Buy-In on Failure
to Timely Deliver Certificates Upon Conversion. In addition to any other rights available to the Holder, if the Company fails for
any reason to deliver to the Holder such certificate or certificates by the Share Delivery Date pursuant to Section 4(c)(ii), and
if after such Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise),
or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of
the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount,
if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds
(y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue
multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage
commissions) and (B) at the option of the Holder, in its sole discretion, either reissue (if surrendered) this Note in a principal amount
equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the
Holder the number of shares of Common Stock that would have been issued if the Company had timely complied with its delivery requirements
under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In
with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any
brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence,
the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including a decree of specific performance
and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock
upon conversion of this Note as required pursuant to the terms hereof.
ix. No Limitation on Damages. More
generally, nothing in this Section 4, including the availability of the option to convert the Note, shall limit the Holder’s
right to pursue actual damages or declare an Event of Default pursuant to Section 7 and the Holder shall have the right to pursue
all remedies available to it hereunder, at law or in equity including a decree of specific performance and/or injunctive relief. The exercise
of any rights under this Section 4 shall not prohibit the Holder from seeking to enforce damages pursuant to any other Section
hereof or under applicable Regulation.
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d) Holder’s Conversion Limitations.
The Company shall not effect any conversion of principal or interest of this Note, and the Holder shall not have the right to convert
any principal or interest of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of
Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder or any
of the Holder’s Affiliates, the “Attribution Parties”) would beneficially own in excess of the Beneficial Ownership
Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the
Holder and its Attribution Parties shall include the number of Conversion Shares issuable upon conversion of this Note with respect to
which such determination is being made, but shall exclude the number of shares of Common Stock issuable upon (i) conversion of the remaining,
unconverted principal amount of this Note beneficially owned by the Holder or any of its Attribution Parties and (ii) exercise or conversion
of the unexercised or unconverted portion of any other Securities of the Company subject to a limitation on conversion or exercise analogous
to the limitation contained herein (including any other Notes) beneficially owned by the Holder or any of its Attribution Parties. Except
as set forth in the preceding sentence, for purposes of this Section 4(d), beneficial ownership shall be calculated in accordance
with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained
in this Section 4(d) applies, the determination of whether this Note is convertible (in relation to other Securities owned by the
Holder together with any Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion
of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note
may be converted (in relation to other Securities owned by the Holder together with any Attribution Parties) and which principal amount
of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction,
the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has
not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of
such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining
the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in
the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be,
(ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer
agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of the Holder, the Company shall
within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of Securities
of the Company, including this Note, by the Holder or its Attribution Parties since the date as of which such number of outstanding shares
of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the issuance of all Conversion Shares to be held by the Holder. The Holder, upon
not less than sixty-one (61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 4(d); provided, that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares
of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note
held by the Holder. Any such increase or decrease will not be effective until the sixty-first (61st) day after such notice
is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a
manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4(d) shall apply to
a successor Holder of this Note.
e) Exchange Cap. The Company shall not issue
any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance of such shares
of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of this Note or
otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations of the Principal
Trading Market for the Common Stock (the number of shares which may be issued without violating such rules and regulations, the “Exchange
Cap”), except that such limitation shall not apply in the event that the Company (i) obtains the approval of its stockholders
as required by the applicable rules of such Principal Trading Market for issuances of shares of Common Stock in excess of such amount
or (ii) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be in form
and substance reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, the Holder shall not be
issued in the aggregate, upon conversion of this Note or otherwise pursuant to the terms of this Note, shares of Common Stock in an amount
greater than the product of (A) the Exchange Cap as of the proposed date of issuance for such shares multiplied by (B) the quotient of
(1) the aggregate original Principal Amount of this Note when issued to the applicable Purchaser pursuant to the Purchase Agreement divided
by (2) the aggregate original Principal Amount of all Purchase Agreement Notes when issued (the “Exchange Cap Allocation”).
In the event that the Holder sells or otherwise transfer any portion of this Note, the transferee shall be allocated a pro rata portion
of the Holder’s Exchange Cap Allocation with respect to such portion of this Note so transferred, and the restrictions of the prior
sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon
conversion in full of any holder of any Purchase Agreement Note, the difference (if any) between such holder’s “exchange cap
allocation” (under and as defined in such Purchase Agreement Note) and the number of shares of Common Stock actually issued to such
holder upon such holder’s conversion in full of any Purchase Agreement Note shall be allocated to the respective Exchange Cap Allocations
of the remaining holders of such Purchase Agreement Notes (including the Holder) on a pro rata basis in proportion to the shares of Common
Stock underlying such Purchase Agreement Notes then held by each such holder. In the event that the Company is prohibited from issuing
any shares of Common Stock pursuant to this Section 4(e)(the “Exchange Cap Shares”) to the Holder, the Company
shall pay cash to the Holder in exchange for the redemption of such portions of this Note that are not convertible into such Exchange
Cap Shares at a price equal to the sum of (A) the product of (1) such number of Exchange Cap Shares and (2) the Closing Sale Price on
the Trading Day immediately preceding the date the Holder delivers the applicable Notice of Conversion with respect to such Exchange Cap
Shares to the Company, and (B) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, brokerage commissions, if any, of the Holder incurred in connection
therewith.
- 48 -
Section
5. Certain Adjustments
a) Stock Dividends and Stock Splits. If
the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a Restricted Payment payable in
shares of Common Stock on shares of Common Stock or any Stock Equivalents (which, for avoidance of doubt, shall not include any shares
of Common Stock issued by the Company upon conversion of, or payment of interest on, this Note), (ii) subdivides outstanding shares of
Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock
into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital
stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares
of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section
5(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Change in Option Price or Rate of Conversion.
If the purchase or exercise price provided for in any options to purchase Common Stock, the additional consideration, if any, payable
upon the issue, conversion, exercise or exchange of any Stock Equivalents into Common Stock, or the rate at which any Stock Equivalents
are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than any change
to the Conversion Price in this Note or any changes to the exercise price in the Warrants), the Conversion Price in effect at the time
of such increase or decrease shall be adjusted to account proportionately, for such increase or decrease. For purposes of this Section
5(b), if the terms of any option or Stock Equivalents are increased or decreased in the manner described in the immediately preceding
sentence, then such option or Stock Equivalents and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 5(b) shall
be made to the Conversion Price if such adjustment would result in an increase to the Conversion Price.
c) Subsequent Equity Sales. If any Company
Party or any Subsidiary thereof, at any time while any Obligation is outstanding or the Holder has not yet received any Conversion Shares
in connection with a conversion, shall sell or grant any option to purchase, or sell or grant any right to reprice, or otherwise dispose
of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any shares of Common Stock or Stock Equivalents
convertible or exchangeable into Common Stock, in each case other than as an Exempt Issuance, at an effective price per share that, after
giving effect to any other adjustment provided in this Note, is less than the Conversion Price then in effect (such lower price, the “Base
Share Price” and such issuances collectively, a “Dilutive Issuance”) then, simultaneously with the consummation
of each Dilutive Issuance the Conversion Price shall be reduced and only reduced to equal the Base Share Price. For the avoidance of doubt,
it is understood and agreed that if a holder of the shares of Common Stock or Stock Equivalents so issued shall, at any time after the
issuance, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise,
or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common
Stock at an effective price per share that is less than the Conversion Price, such issuance shall be deemed to have occurred for less
than the Conversion Price on such date of the Dilutive Issuance at such effective price. Such adjustment shall be made whenever such shares
of Common Stock or Stock Equivalents are issued. No later than 8:00 am on the Trading Day following the issuance or deemed issuance of
any shares of Common Stock or Stock Equivalents subject to this Section 5(c), the Company shall (i) notify the Holder, in writing,
indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms
(such notice, the “Dilutive Issuance Notice”) and (ii) publicly disclose the transaction resulting in such issuance
or deemed issuance in a filing with the SEC. For purposes of clarification, whether or not the Company provides a Dilutive Issuance Notice
pursuant to this Section 5(c), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Conversion
Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base Share Price in the Notice of Conversion.
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d) Pro Rata Distributions. While this Note
is outstanding, the Company shall not declare or make any Restricted Payment (or rights to receive Restricted Payments). In the event
that the Note is repaid at the time of such Restricted Payment, the Holder shall not be entitled to participate in such Restricted Payment.
If the Holder and the Company mutually agree, and the Note is not repaid at the time of such Restricted Payment, then the Holder shall
be entitled to participate in such Restricted Payment to the same extent that the Holder would have participated therein if the Holder
had held the number of shares of Common Stock acquirable upon complete exercise of this Note (without regard to any limitations on exercise
hereof, including the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Restricted Payment,
or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation
in such Restricted Payment (provided, that to the extent that the Holder’s right to participate in any such Restricted Payment
would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such
Restricted Payment to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Restricted Payment
to such extent) and the portion of such Restricted Payment shall be held in abeyance for the benefit of the Holder until such time, if
ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
e) Effect of Fundamental Transactions. Upon
the occurrence of any Fundamental Transaction, the Holder, upon any subsequent conversion of this Note, shall have the right to receive,
for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction
(without regard to any limitation in Section 4(c) on the conversion of this Note), any consideration receivable as a result of
such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible (or holder of any
equity Securities of any Company Party) immediately prior to such Fundamental Transaction (without regard to any limitation in Section
4(c) on the conversion of this Note) (the “Alternate Consideration”), including shares of Common Stock of any successor
or acquiring corporation or of the Company, in the case of a merger where it is the surviving entity. To the extent such Alternate Consideration
includes Securities, the Holder shall have the option to either treat the Note as converted on the date of consummation of such Fundamental
Transaction and obtain such Securities outright or adjust the Conversion Shares to include such additional Securities. For purposes of
any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration
based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the
Company Parties shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative
value of any different components of the Alternate Consideration. In a Fundamental Transaction where holders of Common Stock (or, as the
case may be, Securities of any Company Party) are given any choice as to the Alternate Consideration to be received in a Fundamental Transaction,
then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Note following
such Fundamental Transaction. The Company shall cause any acquiring, successor, surviving or replacement entities in any Fundamental Transaction
(the “Successor Entity”) to become a Company Party effective immediately upon the consummation of such Fundamental
Transaction and shall become a party to all Transaction Documents in the same capacity and to the same extent as the Company Party involved
in such Fundamental Transaction and, if such Fundamental Transaction involves the Company, from and after the date of such Fundamental
Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall, without any
further action, refer instead to the Successor Entity or to both Companies, as appropriate. In the case of a Fundamental Transaction resulting
in the Company no longer be in existence, the Successor Entity shall succeed to all obligations of the Company and may exercise every
right and power of the Company and shall assume all of the Obligations of the Company with the same effect as if such Successor Entity
had been named as the Company herein. The parties hereto shall amend all Transaction Documents (or execute new Transaction Documents,
including replacement Notes and an assumption of the Company’s Obligations) to reflect such change; provided that the failure
to amend or execute any such Transaction Document shall not render this clause (e) ineffective. For the avoidance of doubt, this
clause (e) is not intended to permit any Fundamental Transaction. The Company shall ensure that the Holder approves all drafts
of such amendments and new Transaction Documents prior to the consummation of, and as a condition to the consummation of, such Fundamental
Transaction. Without limitation, if the Fundamental Transaction involves the Company, the definition of Conversion Shares and Conversion
Price hereunder shall be adjusted to include Securities of the Successor Entity and to ensure the new Notes of the Holder convert into
Securities so as to protect the economic value of this Note, taking into account the relative values of the existing and replacement Conversion
Shares, and give the Holder upon conversion of this Note the Conversion Shares equivalent to the Conversion Shares it would have received
upon conversion of this Note prior to such Fundamental Transaction at an equivalent Conversion Price.
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f) Calculations. All calculations under
this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section
5, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares
of Common Stock (excluding any treasury shares of the Company) issued and outstanding.
g) Notices to the Holder.
i. Adjustments to Conversion Price.
Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall not later than 8:00 am
on the Trading Day following such adjustment (i) deliver to each Holder a notice setting forth the Conversion Price after such adjustment
and setting forth a statement of all of the facts requiring such adjustment and the calculation thereof, and (ii) publicly disclose the
transaction resulting in such adjustment in a filing with the SEC. Notwithstanding anything in this Section 5 to the contrary,
no adjustment pursuant to this Section 5 shall increase the Conversion Price other than proportional increases upon the occurrence
of a reverse stock split in accordance with Section 5(a). For the avoidance of doubt, the Holder will be entitled to each such
adjustment on the terms set forth in this Agreement whether or not the Company provides such notice, and the calculation set forth in
such notice shall not be binding on the Holder.
ii. Notice to Allow Conversion by
Holder. If (A) the Company shall declare a dividend (or any other distribution or other Restricted Payment in whatever form) on the
Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company
shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of Capital
Stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification
of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of
the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other Securities, cash or property
or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company,
then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion of this Note,
and shall cause to be delivered to the Holder at its last address as it shall appear upon the Note Register, at least twenty (20) calendar
days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of
which the holders of the Common Stock of record to be entitled to such dividend, distribution, Restricted Payment, redemption, rights
or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange
is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be
entitled to exchange their shares of the Common Stock for Securities, cash or other property deliverable upon such reclassification, consolidation,
merger, sale, transfer or share exchange; provided, that the failure to deliver such notice or any defect therein or in the delivery
thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled
to convert this Note during the 20-day period commencing on the date of such notice through the effective date of the event triggering
such notice except as may otherwise be expressly set forth herein.
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Section
6. NEGATIVE COVENANTS
a) As long as the outstanding principal amount
of the Notes exceeds $200,000.00, no Company Party shall, and no Company Party shall permit any of its Subsidiaries to, directly or indirectly,
do, or enter into any agreement to do, any of the following (except for Sections 6(a)(xiii) and (ix) which shall be binding on each Company
Party and all its Subsidiaries so long as any portion of this Note or any other Obligations is not paid in full):
i. create, incur, assume, enter into
or suffer to exist, any Indebtedness (other than Permitted Debt) or any Guaranty Obligations with respect thereto, or repay the principal
amount of, redeem, purchase or otherwise acquire or offer to repay the principal amount of, redeem, repurchase or otherwise acquire, any
Indebtedness (other than Permitted Debt) or any Guaranty Obligation with respect thereto, whether or not existing on the Original Issue
Date (other than the Purchase Agreement Notes on a pro rata basis based on the principal amounts outstanding);
ii. create, incur, assume, permit or
suffer to exist any Lien of any kind, on or with respect to any of its assets now owned or hereafter acquired or any interest therein
or any income or profits therefrom, other than the Liens securing the Obligations created pursuant to the Transactions Documents and Permitted
Liens;
iii. Sell any of its assets other than
disposition of assets in the ordinary course of business;
iv. make, approve, or offer to make any
Restricted Payment with respect to any shares of Capital Stock (other than the issuance and distribution of the Transaction Securities,
and then only as otherwise required under the Transaction Documents);
v. issue any Capital Stock to any Related
Party that is not a Company Party or a Subsidiary of any Company Party, except for Exempt Issuances;
vi. consummate a Fundamental Transaction,
amend its charter documents in any manner that materially and adversely affects any rights of the Holder or change the nature of its business
from the business conducted by it on the date hereof (and, after the consummation of the Business Combination, the business conducted
by any party to the Business Combination on the date hereof);
vii. enter into any other transaction
with, or make any other payment to, any Related Party of the Company that is not a Company Party or Subsidiary of any Company Party, including
(A) investments by any Company Party or any Subsidiary thereof in such other Related Party, whether in Capital Stock, Stock Equivalents,
other Securities, Indebtedness owing by such Related Party or otherwise, or Indebtedness owing to any such other Related Party and (B)
transfers, sales, leases, assignments or other acquisitions or dispositions of any asset), except for (x) payments with respect to Permitted
Debt permitted pursuant to Section 6a)(i) above, (y) transactions in the ordinary course of business on a basis no less favorable
to the Company Parties and their Subsidiaries as would be obtained in a comparable arm’s length transaction with a Person not a
Related Party and that are expressly approved by a majority of the disinterested directors of the Company (even if less than a quorum
otherwise required for board approval) and (z) salaries and other director or employee or other staff or agent compensation, including
expense reimbursements and employee benefits, of the Company Parties and their Subsidiaries that, in the case of officers, directors and
employees, staff and agents that are also Related Parties even if their employee, staff or agent relationship is not taken into account,
does not include any increase from the compensation in effect on, and disclosed to the Collateral Agent and the Holder on or before the
date hereof;
viii. fail to use the proceeds of the
Note as represented in Section 3.1(gg) of the Purchase Agreement (including by being engaged in operations involving the financing
of any investments or activities in, or any payments to, any Sanctioned Person) or conduct its business in a manner that causes it to
become an “investment company” subject to registration under the Investment Company Act of 1940, as amended, or a U.S. real
property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended) or fail to provide a
certification to the Holder with respect to any of the foregoing items in this clause (viii) upon the Holder’s request; or
ix. directly or indirectly (including
through agents, contractors, trustees, representatives or advisors) (a) be in violation of any Sanctions Law or engage in, or conspire
or attempt to engage in, any transaction evading or avoiding any prohibition in any Sanctions Law, (b) be a Sanctioned Person or derive
revenues from investments in, or transactions with Sanctioned Persons, (c) have any assets located in Sanctioned Jurisdictions, (d) deal
in, or otherwise engage in any transactions relating to, any property or interest in property blocked pursuant to any Regulation administered
or enforced by OFAC or (e) fail to comply with any material Regulations or Contractual Obligations applicable to it or fail to obtain
or comply with any material Permits.
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Section
7. Events of Default
a) “Event of Default” means,
wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary or involuntary
or effected by Regulation or pursuant to any judgment, decree or order of any court, or any order, rule or Regulation of any Governmental
Authority):
i. any default in the payment of (A)
the principal amount of this Note when due or (B) any interest, fees, liquidated damages or any other Obligation owing to the Holder,
the Collateral Agent or any of their Purchaser Parties under any Transaction Document, within (5) Business Days after such principal,
interest, fee, liquidated damage or other Obligation shall become due and payable, whether on the Maturity Date or otherwise;
ii. any Company Party shall fail for
any reason to comply with Section 2.3(a) (Deliveries to Initial Purchasers), Section 2.4 (Post-Closing Deliveries) or Section
4.11 (Trading Activities of Purchasers) of the Purchase Agreement or Section 2(b), Section 2(f), Section 4(c)
(including Section 4(c)(iii)), Section 6, Section 8(k) Section 8(l) of this Note or any other Section of this Note or any
Transaction Document that provides for an action after a notice period or that provides a specific period of time for the Company Parties
to comply with;
iii. any representation or warranty made
by any Company Party in this Note, any other Transaction Document, any other Contractual Obligation with, or any other report, financial
statement, document, written statement or certificate made or delivered to, the Holder or any other Holder Party shall be untrue or incorrect
in any material respect as of the date when made or deemed made;
iv. any Company Party shall provide at
any time notice to the Holder, including by way of public announcement, of such Company Party’s intention to not honor any provision
of this Note or any other Transaction Document (including requests for conversions of this Note in accordance with the terms hereof);
v. any Company Party shall fail to observe
or perform any other covenant, provision, or agreement contained in this Note or any other Transaction Document which failure is not cured,
if possible to cure, within the earlier to occur of (A) five (5) Trading Days after notice of such failure sent by the Holder or by any
other Holder Party to the Company and (B) ten (10) Trading Days after any Company Party has become or should have become aware of such
failure;
vi. a breach, default or event of default
(without regard for any cure period therefor provided therein) shall have occurred under any Indebtedness of any Company Party (A) having
(individually or in the aggregate for all such Indebtedness) an aggregate maximum principal amount or commitment greater than Two Hundred
Thousand Dollars ($200,000), or (B) any such Indebtedness shall become or be declared due and payable prior to the date on which it would
otherwise become due and payable;
vii. a breach, default or event of default
(without regard to any grace or cure period provided in the applicable agreement, document or instrument or any subsequent waiver or other
modification thereto) shall have occurred under any other Contractual Obligation to which any Company Party is obligated that, if determined
to be adverse to any Company Party, could reasonably be expected to result in any injunction affecting any Company Party or any Loss to
the Company Parties in excess of Two Hundred Thousand Dollars ($200,000);
viii. any monetary judgment, writ or
similar final process shall be entered or filed against any Company Party, any Subsidiary of any Company Party or any of their assets
for an injunction or for monetary damages of more than Two Hundred Thousand Dollars ($200,000), and such judgment, writ or similar final
process shall remain unvacated, unbonded or unstayed for a period of forty-five (45) calendar days;
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ix. the occurrence of any levy upon or
seizure or attachment of, or any uninsured loss of or damage to, any asset of any Company Party or any Subsidiary of any Company Party
having an aggregate fair value or repair cost (as the case may be) in excess of Two Hundred Thousand Dollars ($200,000) individually or
in the aggregate, and any such levy, seizure or attachment shall not be set aside, bonded or discharged within forty-five (45) after the
date thereof;
x. (A) any Company Party or any Subsidiary
(as such term is defined in Rule 1-02(w) of Regulation S-X) of any Company Party shall commence a case or other Proceeding under any bankruptcy,
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, winding up, reorganization, arrangement,
adjustment, protection, relief or composition of debts or liquidation or similar Regulation of any jurisdiction relating to the Company
or any such Subsidiary or any Proceeding seeking the entry of an order for relief or the appointment of a custodian, receiver, trustee,
liquidator or other similar official for it or for any of its assets, (B) any such case or other Proceeding shall be commenced against
any Company Party or any such Subsidiary by any other Person and such case or other Proceeding is not dismissed within forty-five (45)
days after commencement, (C) any Company Party or any such Subsidiary shall be adjudicated insolvent or bankrupt or any order of relief
or other order approving any such case or other Proceeding is entered, (D) any Company Party or any such Subsidiary shall generally not
pay its debts as such debts become due, shall admit in writing its inability to pay its debts as they mature or shall make a general assignment
for the benefit of creditors, (E) any Company Party or any such Subsidiary thereof shall call a meeting of its creditors with a view to
arranging a composition, adjustment or restructuring of its debts or (F) any Company Party or any such Subsidiary, by any act or failure
to act, shall expressly indicate its consent to, approval of or acquiescence in any of the foregoing or takes any corporate or other action
(including convening a meeting of the board) to authorize or otherwise for the purpose of effecting any of the foregoing;
xi. the occurrence of any Change of Control
Transaction;
xii. (A) the Common Stock shall become
“penny stock” as defined in Regulations for purposes of 3(a)(51) of the Exchange Act, (B) there shall be no Trading Market
for the Common Stock and the Common Stock shall not be eligible for listing or quotation for trading thereon and shall not be eligible
to resume listing or quotation for trading thereon within five (5) Trading Days or (C) the transfer of shares of Common Stock through
the Depository Trust Company System shall become no longer available or shall be “chilled”;
xiii. the Company shall not meet the
current public information requirements under Rule 144, and such failure is not cured, if it is possible to cure it, within two (2) Trading
Days after the expiration of the applicable grace period permitted under Rule 12b-25 of the Exchange Act; unless the Company files
a Form 12b-25 for the relevant report required to meet the current public information requirements under Rule 144; or
xiv. the Company shall fail to deliver
Common Stock by the Share Delivery Date upon conversion of any portion of this Note.
The clauses in the definition of “Event of Default”
above operate independently, so that any action or event that falls within any such clause shall constitute an Event of Default regardless
of, whether because of a grace period or threshold or otherwise, it falls outside the language of any other clause.
b) Remedies Upon Event of Default. If any
Event of Default occurs, then the outstanding principal amount of this Note and all other Obligations shall become, at the Holder’s
election in its sole discretion, in whole or in part (or, in the case of and Event of Default described in Section 7(a)(x)(A) through
(C), in whole, automatically and without the need for any notice, demand or any other action by the Collateral Agent or the Holder all
of which are hereby waived), immediately due and payable, in cash (while remaining subject to the Holder’s conversion option). In
connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives, any presentment, demand,
protest or other notice of any kind (other than the Holder’s election to declare such acceleration), and the Holder may immediately
and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all other remedies available to
it under applicable Regulations. Such acceleration may be rescinded and annulled by Holder at any time prior to payment hereunder and
the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full payment pursuant to this
Section 7(b). No such rescission or annulment shall affect any subsequent Default or Event of Default or impair any right consequent
thereon.
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Section
8. Miscellaneous
a) Notices. Any and all notices or other
communications or deliveries to be provided by the Holder hereunder, including any Notice of Conversion, shall be in writing and delivered
as set forth in Section 6.4 (Notices) of the Purchase Agreement. All notices and other communications delivered hereunder shall
be effective as provided in the Purchase Agreement.
b) Absolute Obligation. Except as expressly
provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, liquidated damages and accrued interest, as applicable, on this Note, without set off or counterclaim, at the time,
place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company. This Note ranks
pari passu with all other Purchase Agreement Notes now or hereafter issued under the terms set forth in the Transaction Documents
and is at least pari passu with all Indebtedness and other obligations of the Company, and is not subordinated to any such Indebtedness
or other obligation.
c) Lost or Mutilated Note. If this Note
shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and upon cancellation
of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal amount of this
Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such Note, and of
the ownership hereof, reasonably satisfactory to the Company.
d) Dispute Resolution.
i. In the case of a dispute relating
to, or, when an agreement between the Company and the Holder is required hereunder, an inability to agree on, a Conversion Price, a Closing
Bid Price, a Closing Sale Price, a VWAP or a fair market value (as the case may be) (including, without limitation, a dispute relating
to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the dispute to the other party
via facsimile or electronic transmission (A) if by the Company, within two (2) Trading Days after the occurrence of the circumstances
giving rise to such dispute or (B) if by the Holder at any time after the Holder learned of the circumstances giving rise to such dispute.
If the Holder and the Company are unable to promptly resolve such dispute, at any time after the second (2nd) Trading Day following
such initial notice, then the Holder may, at its sole option, select an independent, reputable investment bank to resolve such dispute.
ii. The Holder and the Company shall
each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance with clause d) and
(B) written documentation (together with such copy of such submission, the “Required Dispute Documentation”) supporting
its position with respect to such dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Trading
Day immediately following the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”)
. If either party fails to so deliver all of the Required Dispute Documentation by the Dispute Submission Deadline, then such party shall
no longer be entitled to (and hereby waives its right to) deliver or submit any document or other supporting evidence to such investment
bank with respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation
that was delivered to such investment bank prior to the Dispute Submission Deadline. Unless otherwise agreed to in writing by both the
Company and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver
or submit any written documentation or other support to such investment bank in connection with such dispute other than the Required Dispute
Documentation.
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iii. The Company and the Holder shall
ensure that such investment bank determines the resolution of such dispute and notify the Company and the Holder of such resolution no
later than ten (10) Trading Days immediately following the Dispute Submission Deadline. The fees and expenses of such investment bank
shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final and binding upon all
parties absent manifest error.
e) Governing Law; Courts. As provided
in Section 6.6 (Governing Law; Courts) of the Purchase Agreement, this Note, and all claims, disputes, Proceedings (other than as set
forth in clause (d) above) and matters related hereto or arising hereunder or arising from or relating to the relationship among any of
the parties hereto, are governed by, and shall be construed, interpreted and enforced exclusively in accordance with, the laws of the
State of Delaware (without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require
or permit the application of the laws of any jurisdiction other than those of the State of Delaware). Any such Proceeding shall be brought
exclusively in the Delaware state courts sitting in Wilmington, DE or the federal courts of the United States of America for the District
of Delaware sitting in Wilmington, DE; provided, that the Collateral Agent, the Holder and the other Purchaser Parties may bring Proceedings
in other jurisdictions to enforce this Note. The parties hereto have accepted such jurisdiction and waived venue and other objections
and have agreed to the means for service of process in such Section 6.6.
f) Characterizations. The Company covenants
to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set
forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be
received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance
thereof).
g) Payments on Next Business Day. Whenever
any payment Obligation shall be due on a day other than a Business Day, such payment shall be due instead on the next succeeding Business
Day.
h) Payment of Collection, Enforcement and Other
Costs. In addition to, and not in substitution for and not to limit (but without duplication), any other right to reimbursement under
this Note or any other Transaction Document, (i) this Note is placed in the hands of an attorney for collection or enforcement or is collected
or enforced through any Proceeding or the Holder otherwise takes action to collect amounts due under this Note or to enforce the provisions
of this Note or (ii) there occurs any bankruptcy, reorganization, receivership of the Company or other Proceedings affecting Company creditors’
rights and involving a claim under this Note, then the Company shall pay all out-of-pocket costs incurred by the Holder for such collection,
enforcement or action or in connection with such bankruptcy, reorganization, receivership or other Proceeding, including, but not limited
to, attorneys’ fees and disbursements.
i) Security Interest. The Obligations of
the Company Parties under this Note and the other Transaction Documents are secured by the Security Agreement and the Intellectual Property
Security Agreement, as well as other Transaction Documents.
j) Use of Proceeds. All proceeds of the
purchase of this Note and the other Purchased Securities shall be used as provided in the Purchase Agreement.
k) Non-Public Information. Except with respect
to the Transaction Documents and the transactions contemplated thereunder, which shall be disclosed as provided in the Purchase Agreement,
each Company Party covenants and agrees that neither it, nor any other Person acting on its behalf has provided nor will provide the Holder
or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information,
unless prior thereto the Holder shall have consented to the receipt of such information and agreed with the Company to keep such information
confidential. Any non-disclosure agreement entered into with the Holder and any Company Party are terminated as provided in Section
4.9 (Securities Laws Disclosures) of the Purchase Agreement. The Holder does not have any duty of confidentiality (or a duty not to
trade on the basis of material non-public information) to any Company Party or any of their Affiliates, or any of their respective officers,
directors, agents, members, stockholders, managers, employees and is governed only by application Regulations. Each Company Party understands
and confirms that the Holder shall be relying on all of the foregoing covenants in trading Securities of the Company.
- 56 -
l) Public Disclosures. The Company Parties
and the Holder shall consult with each other in issuing any other public disclosure with respect to the transactions contemplated hereby,
and no Company Party or the Holder shall issue any such public disclosure nor otherwise make any such public statement without the prior
consent of the Company and the Holder, each of which consent shall not unreasonably be withheld or delayed, except if such disclosure
is reasonably viewed as required by any Regulation, in which case the disclosing party shall promptly provide the other party with prior
notice of such public statement or communication. Notwithstanding the foregoing, no Company Party shall, and each Company Party shall
ensure that their Subsidiaries do not, publicly disclose the name, trademark, service mark, symbol, logo (or any abbreviation, contraction
or simulation thereof) of, or otherwise refer to, the Holder or any other Purchaser Party (including in any filing with the SEC, regulatory
agency or Trading Market for any Securities of any Company Party or their Subsidiaries, including the 8-K filing referenced above) without
the prior consent of the Holder and the Collateral Agent (including in any press release, letterhead, public announcement or marketing
material), except, and then only after consulting with such Holder and the Collateral Agent, to the extent required to do so under applicable
Regulations (including as required in any registration statement filed with the SEC). None of the Company Parties and their Affiliates
shall represent that any Company Party or any of its Affiliates, any product or service of the Company Parties or their Affiliates, or
any know how or policy or practice of the Company Parties or their Affiliates has been approved or endorsed by any Purchaser Party.
m) Interpretation. This Note is a Transaction
Document and as such is subject to various interpretative, amendment and third party beneficiary and other miscellaneous provisions set
forth in the Purchase Agreement that expressly apply to Transaction Documents, located principally in Article VI (Miscellaneous)
thereof (including Section 4.9 (Securities Law Disclosures) which, among other things, restrict public disclosures of the name
of the Holder, Section 6.15 (Interpretation) that provides, among other things, that payments due on a day that is not a Business
Day may be made on the next Business Day), as well as, without limitation, set off provisions in Section 6.5 (Set Off) thereof
whereby amounts owing hereunder may be set off against amounts owed by the Holder and certain related entities, indemnification and expense
reimbursement provisions in Sections 4.14 (Indemnification of Each Purchaser Party) and 6.2 (Fees and Expenses) thereof
that benefit the Holder, among others. In particular, without limitation, (i) none of the terms or provisions of this Note may be waived,
amended, supplemented or otherwise modified except in accordance with Section 6.3(b) (Amendments) of the Purchase Agreement and
(ii) as described in Section 6.3(a) (Entire Agreement) of the Purchase Agreement, this Note and the other Transaction Documents
contain and constitute the entire agreement of the parties with respect to the subject matter hereof. Any Holder also benefits from various
provisions of the Purchase Agreement applicable to “Purchasers” (whether by virtue of being an “Initial Purchaser”
or successor in interest thereto) and agrees to be bound by the provisions of the Purchase Agreement applicable to it in such capacity,
including Article V (Collateral Agent) thereof that describes its relationship with the Collateral Agent and contains an indemnification
provision in Section 5.9 (Indemnification) thereof. Finally, in addition to these provisions, unless otherwise expressly provided
in any Transaction Document, “outstanding” when referring in any Transaction Document to the principal amount owing
under this Note shall mean “outstanding and unconverted.”
n) Beneficiaries; Successors and Assigns.
As provided in Section 6.3(c) (Beneficiaries; Successors and Assigns) of the Purchase Agreement, this Note shall be binding upon
the successors and assigns of the Company and shall inure solely to the benefit of the Holder, each Company Party, the Collateral Agent,
each of their Purchaser Parties and their respective successors and, if permitted, assigns; provided, that no Company Party may
assign any part of this Note, or any right, obligation, benefit, title or interest hereunder except as authorized in the Purchase Agreement.
o) Counterparts. As provided in clauses
(e) (Counterparts) and (f) (Electronic Signatures) of Section 6.3 of the Purchase Agreement, this Note may be executed in any
number of counterparts, which may be signed and transmitted electronically.
p) Severability. As provided in Section
6.7 (Severability) of the Purchase Agreement, any provision of this Note being held illegal, invalid or unenforceable in any jurisdiction
shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this Note or any part of
such provision in any other jurisdiction, so long as the economic or legal substance of the transaction contemplated hereby is not affected
in any manner adverse to any party.
q) Waiver of Jury Trial. As provided in Section
6.16 (Waiver of Jury Trial and Certain Other Rights), each party hereto has irrevocably and unconditionally waived, to the fullest extent
permitted by applicable Regulations, trial by jury of any claim or cause of action or in any Proceeding, directly or indirectly with respect
to, or directly or indirectly based upon or arising out of, under or in connection with this Note or any other Transaction Document or
the transactions contemplated therein or related thereto (whether founded in contract, tort or any other theory). Each party hereto
(A) certifies that no other party, no Purchaser Party and no Affiliate of any of them and no attorney, agent or other representative of
any of the foregoing has represented, expressly or otherwise, that any Person would not, in the event of litigation, seek to enforce the
foregoing waiver and (B) acknowledges that it and the other parties hereto have been induced to enter into this Note by, among other things,
the mutual waivers and certifications in this Section 8(q).
[Signature
Pages Follow]
- 57 -
In witness
whereof, each of the undersigned has duly executed this Note as of the date first written above.
PROFUSA INC.
By
Name:
Title:
Accepted and Agreed:
[ASCENT PARTNERS FUND LLC]
By:
Name:
Title:
Address:
- 58 -
ANNEX A
NOTICE OF CONVERSION
The undersigned hereby elects to convert principal
under the Senior Secured Convertible Promissory Note (as the same may be amended or otherwise modified from time to time, the “Note”;
capitalized terms used but not defined herein are used as defined in the Note, including if defined by reference to other agreements),
due _________ and issued by Profusa Corp, a Delaware corporation (together with its successors and, if permitted, assigns, the “Company”),
into shares of common stock (the “Common Stock”), of the Company according to the conditions hereof, as of the date
written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay
all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the
Company in accordance therewith. No fee will be charged to the Holder for any conversion, except for such transfer taxes, if any.
By the delivery of this Notice of Conversion the
undersigned represents and warrants to the Company that its ownership of the Common Stock does not exceed the amounts specified under
Section 4 of the Note, as determined in accordance with Section 13(d) of the Exchange Act.
The undersigned agrees to comply with the prospectus
delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock.
Conversion calculations:
Date to Effect Conversion:
Principal Amount of Note to be Converted:
Payment of Interest in Common Stock __ yes __ no
If yes, $_____ of Interest Accrued on Account of Conversion
at Issue.
Number of shares of Common Stock to be issued:
This Notice of Conversion is a Transaction Document
and, as such is subject to various provisions of the Purchase Agreement applicable to Transaction Documents, including, among others,
choice of law, forum, and waiver of jury trial.
By:
Name:
Title:
Delivery Instructions:
- 59 -
Schedule
1
CONVERSION SCHEDULE
This Conversion Schedule is part of, and reflects conversions made
under Section 4 of, the Senior Secured Convertible Promissory Note, due on __________4
and issued by Profusa Inc., a Delaware Corporation, in the original principal amount of $__________.
Dated:
Date of Conversion
(or for first entry, Original Issue Date)
Amount of
Conversion
Aggregate Principal Amount Remaining Subsequent to Conversion
(or original Principal Amount)
Company
Attest
4 Insert date that is 12 months after Original Issue Date
- 60 -
EX-10.2 — SENIOR SECURED CONVERTIBLE PROMISSORY NOTE, DATED APRIL 2, 2026, ISSUED TO ASCENT PARTNERS FUND LLC
EX-10.2
Filename: ea028515101ex10-2.htm · Sequence: 3
Exhibit 10.2
THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES REGULATIONS AND, ACCORDINGLY,
MAY NOT BE SOLD, OFFERED FOR SALE OR PLEDGED AS SECURITY IN THE ABSENCE OF SUCH REGISTRATION WITHOUT RELIANCE ON AN EXEMPTION UNDER THE
SECURITIES ACT AND COMPLIANCE WITH APPLICABLE STATE SECURITIES REGULATIONS.
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE
DISCOUNT (“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), BEN C. HWANG, A REPRESENTATIVE OF THE COMPANY WILL,
BEGINNING TEN DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED
IN TREASURY REGULATION §1.1275-3(b)(1)(i). BEN C. HWANG MAY BE REACHED AT (415) 655-9861, BEN.HWANG@PROFUSA.COM.
SENIOR
SECURED CONVERTIBLE PROMISSORY NOTE
DUE
APRIL 2, 2027
Original Issue Date: April 2, 2026
Principal Amount: $555,555.55
Purchase Price: $500,000.00
This Senior Secured Convertible Promissory
Note is one of a series of duly authorized and validly issued Senior Secured Convertible Promissory Notes of Profusa, Inc. (formerly
known as, Northview Acquisition Corp.), a Delaware corporation, (the “Company”), designated as its Senior Secured Convertible
Promissory Note due April 2, 2027 (this “Note” and, collectively with the other Notes of such series, the “Notes”),
issued and sold by the Company pursuant to the Securities Purchase Agreement, dated as of February 11, 2025, by and among the Company,
and Ascent Partners Fund LLC (together with its successors and registered assigns, the “Holder”), a Delaware limited
liability company (as amended, restated or supplemented from time to time, the “Purchase Agreement”). Capitalized terms
used but not otherwise defined herein are used as defined in the Purchase Agreement on the date hereof, with such amendments as may be
acceptable to the Holder in its sole discretion). This Note is entered into pursuant to the Purchase Agreement and is subject to the terms
and conditions thereof.
FOR VALUE RECEIVED, the Company promises
to pay to the order of the Holder the principal amount first written above on April 2, 2027 (the “Maturity Date”) in
full in cash or on such earlier date as this Note is required or permitted to be repaid as provided hereunder, in each case together with
all accrued but unpaid interest thereon and all other Obligations (as defined below), and otherwise to pay interest to the Holder on the
aggregate unconverted and then outstanding principal amount of this Note and such other Obligations in accordance with the provisions
hereof. Amounts repaid will not be advanced again.
This Note is subject to the following additional
provisions:
Section
1. Definitions
For the purposes hereof, in addition to terms
defined elsewhere in this Note or not defined in this Note but defined in the Purchase Agreement, the following terms shall have the following
meanings:
“Alternate Consideration” has
the meaning specified in Section 5(e).
“Attribution Parties”
has the meaning specified in Section 4(d).
“Base Share Price”
has the meaning specified in Section 5(c).
“Beneficial Ownership
Limitation” has the meaning specified in Section 4(d).
“Buy-In”
has the meaning specified in Section 4(c)(vii).
“Capital Lease”
means, as applied to any Person, any lease of, or other arrangement conveying the right to use, any property (whether real, personal or
mixed) by that Person as lessee that, in conformity with U.S. generally accepted accounting principles (GAAP) consistently applied, is
or should be accounted for as a capital lease on the balance sheet of that Person.
“Capital Stock”
means any share, participation or other equivalent (however designated) of the capital stock of a corporation, any equivalent ownership
interest in any other Person, including partnership interests and membership interests, and any warrant, right or option to purchase or
other arrangement (including through a conversion or exchange of any other property) to acquire or subscribe for any item otherwise satisfying
the definition of “Capital Stock,” whether or not presently convertible, exchangeable or exercisable.
“Cash Payment Fee”
has the meaning specified in Section 2(g).
“Change of Control”
means the occurrence of any of the following: (a) any Person or group of Persons (within the meaning of the Exchange Act) shall have acquired
legal or beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Exchange Act) of (i) 50% prior to any initial public
offering of the Common Stock and (ii) 20% thereafter or more of the issued and outstanding Voting Stock of any Company Party (whether
on an as converted, fully diluted basis or without taking into account any potential conversion or dilution of Stock Equivalents), other
than by acquiring such Common Stock directly in an offering made to the general public, (b) during any period of twelve consecutive calendar
months, individuals who, at the beginning of such period, constituted the board of directors of the Company (together with any new directors
whose election by the board of directors of the Company or whose nomination for election by the stockholders of the Company was approved
by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose
elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority
of the directors then in office or (c) the Company shall cease to own and control all of the economic and voting rights associated with
all of the outstanding Stock of the other Company Parties.
“Closing Bid Price”
and “Closing Sale Price” means, for any Security as of any date:
(i) the last closing
bid price and last closing trade price, respectively, for such Security on the Principal Trading Market for such Security, as reported
by Bloomberg; or
(ii) if such Principal
Trading Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as
the case may be), then the last bid price or last trade price, respectively, of such Security prior to 4:00:00 p.m., New York time, as
reported by Bloomberg; or
(iii) if such Security
no longer trades on its Principal Trading Market, then the last closing bid price or last trade price, respectively, of such Security
on the principal Trading Market where such Security is listed or traded as reported by Bloomberg; or
(iv) if such Security
no longer trades on a Trading Market, the last closing bid price or last trade price, respectively, of such Security in the over-the-counter
market on the electronic bulletin board for such Security as reported by Bloomberg; or
(v) if no closing
bid price or last trade price, respectively, is reported for such Security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such Security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly
Pink Sheets LLC); or
(vi) if the “Closing
Bid Price” or the “Closing Sale Price” cannot be calculated for a Security on a particular date based on
the foregoing, the “Closing Bid Price” and the “Closing Sale Price” of such Security on such date
shall be the fair market value as mutually determined by the Company and the Holder; or
2
(vii) if the Company
and the Holder are unable to agree upon the fair market value of such Security, then such dispute shall be resolved, and such fair market
value (and therefore the “Closing Bid Price” and “Closing Sale Price”) shall be determined, in accordance
with the procedures set forth in Section 8(d).
All such determinations shall be appropriately
adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such period.
“Common Stock”
means the common stock of the Company, par value $0.0001 per share, and any other Capital Stock into which such shares of common stock
may hereafter be changed or any share capital resulting from a reclassification of such common stock.
“Conversion”
has the meaning specified in Section 4.
“Conversion Date”
has the meaning specified in Section 4(a).
“Conversion Price”
has the meaning specified in Section 4(b).
“Conversion Schedule”
means the Conversion Schedule in the form of Schedule 1.
“Conversion Shares”
means, collectively, the shares of Common Stock issuable upon conversion of this Note in accordance with the terms hereof, including shares
of Common Stock issued upon conversion or redemption, of this Note, and shares of Common Stock issued and issuable in lieu of the cash
payment of interest on this Note in accordance with the terms of this Note.
“Customary Permitted
Liens” means all of the following, for any Person:
(i) Liens securing
the payment of taxes, assessments or other charges or levies imposed by any Governmental Authority which are either not yet overdue or
the validity of which are being contested in good faith by appropriate proceedings diligently pursued and with respect to which adequate
reserves have been set aside on such Person’s books;
(ii) non-consensual
statutory Liens (other than Liens securing the payment of taxes) arising in the ordinary course of business to the extent (A) such Liens
secure Indebtedness that is not overdue for a period of more than 30 days or (B) such Liens secure Indebtedness relating to claims or
liabilities that are fully insured and being defended at the sole cost and expense and at the sole risk of the insurer or being contested
in good faith by appropriate proceedings diligently pursued, in each case prior to the commencement of foreclosure or other similar proceedings
and with respect to which adequate reserves have been set aside on such Person’s books;
(iii) zoning, building
and land use restrictions, easements, servitudes, encumbrances, licenses, covenants and other restrictions affecting the use of real property
or minor defects or irregularities in title thereto that do not interfere in any material respect with the use of such real property or
the ordinary conduct of the business of the Company and its Subsidiaries as presently conducted thereon or materially impair the value
of the real property that may be subject thereto;
(iv) pledges and
deposits of cash in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types
of social security benefits consistent with current practices as in effect on the date hereof;
(v) undetermined
or inchoate Liens and charges arising or potentially arising under statutory provisions which have not at the time been filed or registered
in accordance with applicable Regulation or of which written notice has not been duly given in accordance with applicable Regulation or
which although filed or registered, relate to obligations not due or delinquent, including without limitation statutory Liens incurred,
or pledges or deposits made, under worker’s compensation, employment insurance and other social security legislation;
3
(vi) Liens or deposits
to secure the performance of bids, tenders, expropriation proceedings, trade contracts, leases, statutory obligations, surety and performance
bonds and other obligations of a like nature (other than for borrowed money), and deposits to secure equipment contracts, in each case
incurred in the ordinary course of business;
(vii) appeal bonds;
(viii) landlord
Liens for rent not yet due and payable;
(ix) Liens arising
from operating leases and the precautionary UCC financing statement filings in respect thereof;
(x) judgments and
other similar Liens arising in connection with court proceedings that do not constitute a Default or Event of Default; provided,
that, (A) such Liens are being contested in good faith and by appropriate proceedings diligently pursued, (B) adequate reserves or other
appropriate provision, if any, as are required by U.S. generally accepted accounting principles, consistently applied, have been made
therefor and (C) a stay of enforcement of any such Liens is in effect; and
(xi) customary rights
of set-off or combination of accounts in favor of a financial institution with respect to deposits maintained by such Person.
“Default”
means any event which, with the passing of time or the giving of notice or both, would become an Event of Default.
“Default Rate”
means twenty-four percent (24%) per annum.
“Derivative”
means (a) any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement
or other similar agreement or arrangement, (b) any foreign exchange contract, currency swap agreement, futures contract, option contract,
synthetic cap or other similar agreement or arrangement, (c) any futures or forward contract, spot transaction, commodity swap, purchase
or option agreement, other commodity price hedging arrangement, cap, floor or collar transaction, any credit default or total return swap,
and (d) any other derivative instrument, any other similar speculative transaction and any other similar agreement or arrangement designed
to alter the risks of any Person arising from fluctuations in any underlying variable, including interest rates, currency values, insurance,
catastrophic losses, climatic or geological conditions or the price or value of any other derivative instrument. For the purposes of this
definition, “derivative instrument” means “any derivative instrument” as defined in Statement of Financial Accounting
Standards No. 133 (Accounting for Derivative Instruments and Hedging Activities) of the United States Financial Accounting Standards Board,
and any defined with a term similar effect in any successor statement or any supplement to, or replacement of, any such statement.
“Dilutive Issuance”
has the meaning specified in Section 5(c).
“Dilutive Issuance
Notice” has the meaning specified in Section 5(c).
“Dispute Submission
Deadline” has the meaning specified in Section 8(d)(i).
“DTC” means
the Depository Trust Company.
“DTC/FAST Program”
means the DTC’s Fast Automated Securities Transfer Program.
“DWAC Eligible”
means that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s Operational Arrangements, including 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 Conversion Shares are otherwise eligible for delivery via
DWAC, and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Conversion Shares via DWAC.
4
“Equity Payment Conditions”
means, as of any date, (a) no Default or Event of Default is continuing, (b) the Common Stock is trading on its Principal Trading Market
and all of the Conversion Shares are listed or quoted for trading in such Principal Trading Market and comply with all of the conditions
for such listing or quotations (and the Company reasonably believes that trading of the Common Stock on such Principal Trading Market
will continue uninterrupted, and shall continue to comply with the conditions for listing or quotation for trading in such Principal Trading
Market, for the 180 days following such date), (c) the Company has timely filed (or obtained extensions in respect thereof and filed within
the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act and the
Company has met the current public information requirements of Rule 144(c) under the Securities Act as of the end of the period in question,
(d) the average daily dollar trading volume of the Common Stock for the twenty (20) full Trading Days preceding such date exceeds at least
12.5% of the aggregate “Initial Principal Amounts” of all of the Purchase Agreement Notes, (e) the Company shares of common
stock are DWAC Eligible and not subject to a “DTC chill,” and (f) the Common Stock does not constitute “penny stock”
under and as defined in the Exchange Act and the corresponding Regulation, and (g) all Conversion Shares are freely tradeable and registered
under the Securities Act for unrestricted resale.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
has the meaning specified in Section 4(e).
“Exchange Cap Allocation”
has the meaning specified in Section 4(e).
“Exchange Cap Shares”
has the meaning specified in Section 4(e).
“Event of Default”
has the meaning specified in Section 7(a).
“Floor Price”
means an amount per share of Common Stock equal to twenty percent (20%) of the Closing Sale Price of the Common Stock on the Principal
Trading Market on the Amendment Effective Date. Notwithstanding anything herein to the contrary, the Conversion Price shall at no time
be less than the Floor Price.
“Fundamental Transaction”
means any of the following transactions, whether effected directly or indirectly or through on or a series of related transactions: (i)
any merger or consolidation of the Company, (ii) any merger or consolidation of any other Company Party with or into another Person that
is not a Company Party; (iii) any Sale or license of any right, title or interest in the assets of any Company Party, other than to a
Company Party and other than transactions in the ordinary course of business and transactions that, individually or in the aggregate,
affect less than 10% of the market value of the consolidated assets of the Company Parties, (iv) the completion of any purchase offer,
tender offer or exchange offer (whether by the Company or another Person) pursuant to which holders of Common Stock Sell, tender or exchange
their shares for other Securities, cash or property, and (v) any other corporate reorganization, Securities purchase or other business
combination involving the Company or, if all surviving entities are not a Company Party, any other Company Party, including any spin-off
or scheme of arrangement of any Company Party, any reorganization, recapitalization or reclassification of the Common Stock, any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other Securities, cash or other assets.
“Late Fee”
has the meaning specified in Section 2(f).
“Mandatory Prepayment
Amount” has the meaning specified in Section 2(b).
“Minimum Interest
Amount” means 12% of the Initial Principal Amount of this Note, which amounts represents a full year of interest payments hereunder;
provided, that such amount shall be reduced by the amount of interest accrued hereunder on the principal amount of this Note.
“Note Register”
has the meaning specified in Section 3(c).
“Notice of Conversion”
has the meaning specified in Section 4(a).
5
“Obligations”
means all amounts, indebtedness, obligations, liabilities, covenants and duties of every type and description owing by any Company Party
from time to time to the Holder, the Collateral Agent or any of their Purchaser Parties under this Note or any other Transaction Document,
whether direct or indirect, joint or several, absolute or contingent, due or to become due, liquidated or unliquidated, secured or unsecured,
now existing or hereafter arising and however acquired (regardless of whether acquired by assignment), whether or not evidenced by any
note or other instrument or for the payment of money, including, without duplication, (i) the principal amount of the Note owing by the
Company or any other Company Party (including any Mandatory Prepayment Amount, any Optional Prepayment Amount and any Minimum Interest
Amount owing hereunder), (ii) all other amounts, fees (including all Late Fees and any Cash Payment Fees), interest (including the Minimum
Interest Amount and interest accruing at the Default Rate), liquidated damages, commissions, charges, costs, expenses, attorneys’
fees and disbursements, indemnities (including Losses and other amounts for which any Company Party is required to indemnify the Collateral
Agent, the Holder, or any of their Purchaser Parties under the Purchase Agreement), reimbursement of amounts paid and other sums chargeable
to any Company Party under any Transaction Document or otherwise arising under any Transaction Document and (iii) all interest on any
item otherwise qualifying as “Obligation” hereunder, whether or not accruing after the filing of any petition in bankruptcy,
or the commencement of any insolvency, reorganization or similar proceeding, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding.
“Optional Prepayment
Amount” means, at any time with respect to any principal amount, the sum of (a) one hundred (100%) of such principal amount
and all accrued interest hereon outstanding as of such time (including any Minimum Interest Amount remaining outstanding on such principal
amount as of such time) and (b) all other amounts, costs, fees (including Late Fees and Cash Payment Fees), expenses, indemnification
and liquidated and other damages and other amounts due to the Holder, the Collateral Agent or any of their Purchaser Parties in respect
of this Note or any other Transaction Document.
“Original Issue Date”
means the date of the first issuance of this Note, regardless of any transfers of any Note and regardless of the number of instruments
which may be issued to evidence such Note.
“Permitted Debt”
means all of the following: (i) Indebtedness owing to any Secured Party under any Transaction Document; (ii) unsecured intercompany Indebtedness
between the Company and its Subsidiaries in the ordinary course of business; (iii) unsecured Indebtedness of the Company or any of its
Subsidiaries to trade creditors (including overdue amounts on invoices) incurred on customary terms in the ordinary course of business;
(vi) Indebtedness of the Company or any Subsidiary under Capital Leases for equipment or Indebtedness of the Company or any Subsidiary
secured by a Purchase Money Lien, which Indebtedness shall not at any time exceed $50,000 in the aggregate for the Company and its Subsidiaries;
and (vii) Indebtedness of the Company or any of its Subsidiaries under leases for facilities that are treated as Capital Leases under
GAAP.
“Permitted Liens”
means (i) the Liens of the Secured Parties as provided for in any Transaction Document; (ii) Customary Permitted Liens of the Company
Parties; and (iii) Purchase Money Liens granted to or held by Purchase Money Lien lenders in connection with the purchase, leasing or
acquisition of capital equipment in the ordinary course of business and without resulting in a contravention of any applicable provisions
of this Note.
“Purchase Agreement
Notes” means all “Notes” issued under, and as defined in, the Purchase Agreement.
“Purchase Money Lien”
means any Lien securing Indebtedness (i) upon or in any equipment acquired or held by the Company or any of its Subsidiaries to secure
the purchase price of such equipment or indebtedness incurred solely for the purpose of financing the acquisition or lease of such equipment
or (ii) existing on such equipment at the time of its acquisition, in each case provided, that the Lien is confined solely to the property
so acquired and improvements thereon, and the proceeds of such equipment.
“Required Dispute
Documentation” has the meaning specified in Section 8(d)(i).
“Secured Parties”
means the Holder, the Collateral Agent and each other holder of Purchased Securities, each beneficiary of any indemnification or reimbursement
obligation by any Company Party under the Purchase Agreement or any other Transaction Document.
6
“Share Delivery Date”
has the meaning specified in Section 4(c)(ii).
“Subsequent Offering”
has the meaning specified in Section 2(b).
“Successor Entity”
has the meaning specified in Section 5(e).
“VWAP”
means, for or as of any date for any Security, the following:
(i) the dollar volume-weighted
average price for such Security on the Principal Trading Market for such Security during the period beginning at 9:30:01 a.m., New York
time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its “HP” function (set to weighted average);
or,
(ii) if Bloomberg
does not report such a price, the dollar volume-weighted average price of such Security in the over-the-counter market on the electronic
bulletin board for such Security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time,
as reported by Bloomberg; or
(iii) if no dollar
volume-weighted average price is reported for such Security by Bloomberg for such hours, the average of the highest Closing Bid Price
and the lowest Closing Ask Price of any of the market makers for such Security on such date as reported in the “pink sheets”
by OTC Markets Group Inc. (formerly Pink Sheets LLC); or
(iv) if the VWAP
cannot be calculated for such Security on such date on any of the foregoing bases, the VWAP of such Security on such date shall be the
fair market value as mutually determined by the Company and the Holder.
All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
SECTION 2. REPAYMENT
a) Principal. The Company
shall pay to the order of the Holder the principal amount first written above on the Maturity Date in full in cash or on such earlier
date as this Note is required or permitted to be repaid as provided hereunder, in each case together with all accrued but unpaid interest
thereon and all other Obligations (as defined below). In addition, the Company shall pay in full on the Maturity Date all remaining Obligations
then outstanding.
b) Mandatory Prepayments.
On the next Business Day following the Company consummating any public or private offering or any other issuance of any Capital Stock
or any other issuance of any Capital Stock (other than any issuance of Common Stock to the general public), Stock Equivalents or of any
other Securities or Indebtedness (including entering into any Equity Line of Credit or issuing any Variable-Priced Equity-Linked Instrument)
or any other debt or equity financing or capital-raising transaction of any kind (each, a “Subsequent Offering”) on
any date other than the Maturity Date, the Company shall, subject to the Holder’s conversion rights set forth herein, to repay the
Obligations pay to the Holder in cash an amount equal (each, a “Mandatory Prepayment Amount”) (i) in the case of a
Subsequent Offering other than an Equity Line of Credit, 50% of the net proceeds of such Subsequent Offering and (ii) in the case of Subsequent
Offering that is an Equity line of Credit, 50% of the net proceeds, with respect to shares of Common Stock registered under the registration
statement on Form S-1 (File No. 333-290805) or 50.0% of the net proceeds, with respect to shares of Common Stock registered under any
registration statement on Form S-1 filed after the date hereof). The Holder may continue to convert the principal amounts to be prepaid
under this Note until the date of consummation of such Subsequent Offering. This Section 2(b) is merely a requirement to redeem this Note
and not an authorization to consummate any Subsequent Offering otherwise prohibited by the Transaction Documents.
c) Voluntary Prepayments.
So long as no Default or Event of Default exists, at any time upon ten (10) Business Days’ prior written notice to the Holder (which
notice shall be a Transaction Document and constitute an irrevocable agreement to pay such amount on the date set forth on such notice)
stating the proposed date and proposed principal amount of such prepayment, but subject to the Holder’s conversion rights set forth
herein, the Company may prepay any portion of the principal amount of this Note, any accrued and unpaid interest, and any other amounts
due under this Note. If the Company exercises its right to prepay the Note, instead of such principal amount, the Company shall pay to
the Holder in cash an amount equal to the full Optional Prepayment Amount for such principal amount prepaid. The Holder may continue to
convert the principal amount of the Note to be prepared after the date notice of the prepayment is given until the date it receives such
Optional Prepayment Amount in full in cash.
7
d) Interest. The Company
shall pay interest to the Holder on the aggregate then-outstanding principal amount of this Note (and the then-outstanding principal amount
of any other Obligation owing that does not expressly provide for any other rate of interest), which shall accrue daily at the rate of
twelve percent (12%) per annum from the date this Note is issued (or in the case of any other Obligation, from the date such obligation
becomes due and payable) through the date such principal amount or other Obligation is paid in full; provided, that the Minimum
Interest Amount shall be fully earned and accrued on the Original Issue Date. Accrued interest shall replace and not add to the Minimum
Interest Amount and all payments of such accrued interest shall cause a corresponding reduction in any remaining Minimum Interest Amount.
Accrued and unpaid interest shall be due and payable in cash on the first day of each calendar month and on the Maturity Date, or as otherwise
set forth herein. Any interest accrued and unpaid on any principal amount, and any remaining Minimum Interest Amount on such principal
amount, shall be due and payable upon any repayment of such principal amount under this Note. Upon an Event of Default, the interest rate
set forth hereunder shall increase as provided in clause (e) below. The Minimum Interest Amount is intended to compensate the Holder
for a lesser profit in case of early repayment and for the internal and external work and expenditure of time and money involved in the
evaluation and preparation of the Transaction Documents and the consummation of the transactions contemplated thereunder. The Minimum
Interest Amount is not to be construed to cover or be applied against any indemnity or any out-of-pocket fees, costs or expenses incurred
in any action to collect any Obligation or to foreclose any Lien securing the same. This provision shall not affect or limit the Holder’s
rights or remedies with respect to any Event of Default.
e) Default Rate. Immediately
on and after the occurrence of any Event of Default, without need for notice or demand all of which are waived, interest on this Note
shall, in whole, automatically and without the need for any notice, demand or any other action by the Collateral Agent or the Holder all
of which are hereby waived, accrue and be owed daily at an increased interest rate equal to the lower of the Default Rate or the maximum
rate permitted under applicable Regulations. If an Event of Default (after giving effect to notice periods and grace periods) occurs,
the Default Rate shall become effective as of the date the Default that because such Event of Default first occurred, without consideration
for any notice provision or grace period.
f) Late Fee. The Company
shall pay a late fee (each a “Late Fee”) on any Obligation that is not paid when due (after taking into account applicable
grace periods set forth in Section 7(a)(i) hereof), in an amount equal to ten percent (10%) of such payment, to the Person owed such Obligation.
This Late Fee shall be due and payable immediately upon such failure. It is intended to cover the inconvenience and additional internal,
administrative and other fees, costs and expenses involved in processing delinquent payments and is not to be construed to cover or be
applied against any indemnity or any out-of-pocket fees, costs or expenses incurred in any action to collect any Obligation or to foreclose
any Lien securing the same. This provision shall not affect or limit the Holder’s rights or remedies with respect to any Event of
Default. This obligation to pay a Late Fee is a separate obligation and, once it has arisen hereunder, a failure to pay such Late Fee
will not be cured implicitly by any waiver of any Event of Default or similar event that may have caused the payment that gave rise to
such Late Fee.
g) Cash Payment Fee.
The Company shall pay a cash payment fee (each a “Cash Payment Fee”) in an amount equal to five percent (5%) of the
amount of any repayment of the principal amount of this Note that is made in cash at any time when (i) the Company shall not have received
a notice from the Holder or the Collateral Agent that an Event of Default exists, or (ii) the Company shall have received such a notice
and such Event of Default shall have been cured to the satisfaction of the Holder. This Cash Payment Fee shall be due and payable together
with such repayment and is intended to cover any loss in revenues resulting from such repayment being made in cash instead of using Common
Stock, as well as other internal costs and expenses and is not to be construed to cover or be applied against any indemnity or any out-of-pocket
fees, costs or expenses incurred in any action to collect any Obligation or to foreclose any Lien securing the same. The Cash Payment
Fee shall not be applicable to the payment of any Mandatory Prepayment Amount. This provision shall not affect or limit the Holder’s
rights or remedies with respect to any Event of Default. This obligation to pay a Cash Payment Fee is a separate obligation hereunder
and, once arisen, shall be owed regardless of whether such payment is later returned, reversed, forgiven, waived or voided.
8
h) Calculations and Payment
Provisions. All payments made to the Holder, the Collateral Agent and their Purchaser Parties under any Transaction Document, except
as otherwise expressly provided in any Transaction Document, shall be made in cash, which shall mean in immediately available dollars
and without set off or counterclaim. Interest and fees owing to any of them shall be calculated on the basis of a 360-day year consisting
of twelve thirty (30)-day periods, for the actual number of days occurring, in whole or in part, in the applicable period. The Holder
(or, for payments owing to it, the Collateral Agent) shall have the option to refuse or accept, in their sole discretion, any payment
to the Collateral Agent, the Holder or their Purchaser Parties attempted to be made without a required notice, without a required Optional
Prepayment Amount, a Minimum Interest Amount or a required fee. The Holder (or, for payments owing to the Collateral Agent, the Collateral
Agent) may, in its sole discretion, apply or recharacterize any payment made under any Transaction Document to the payment of any outstanding
Obligation, regardless of the intended characterization thereof by any Company Party, including by recharacterizing a payment of principal
made to a payment of an Optional Prepayment Amount, a Minimum Interest Amount or a required fee, even if this characterization results
in a smaller payment of principal. The Company hereby irrevocably waives the right to direct the application of any payment (or, after
any Event of Default, any proceeds of Collateral) to any Obligation. Whenever any payment under any Transaction Document shall be stated
to be due on a day other than a Business Day, such payment shall be due on the next succeeding Business Day, including for purposes of
the calculation of interest and fees. Any payment of any Obligation received by the Holder, the Collateral Agent or any Purchaser Party
after 3 p.m. on any day shall be deemed received on the next Business Day. Each determination by the Holder (or, for payments owing to
it, the Collateral Agent) of an amount of interest or fee due hereunder shall be conclusive and binding for all purposes, absent manifest
error.
Section
3. Registration of Transfers and Exchanges
a) Different Denominations.
This Note is exchangeable for an equal aggregate principal amount of Notes of different authorized denominations, as requested by
the Holder surrendering the same. No service charge will be payable for such registration of transfer or exchange.
b) Investment Representations.
This Note has been issued subject to certain investment representations of the original Holder and may be transferred or exchanged
only in compliance with applicable federal and state securities Regulations.
c) Reliance on Note Register.
The Company shall maintain in its records a list of the Holders and of registration and transfers of the Note (the “Note
Register”). The initial Holder is listed herein. Any Holder may later notify in writing the Company of an assignment or transfer
and the Company shall notify such transfer in the Note Register. Failure by the Company to duly notify such transfer in the Note Register
shall not affect the validity of such assignment or transfer. Nevertheless, if the Company has not received notice of any transfer of
this Note, the Company and any agent of the Company may treat the Person in whose name this Note is duly registered as the owner hereof
for the purpose of receiving payment as herein provided and for all other purposes, whether or not this Note is overdue. Upon request
by the Holder, the Company shall immediately execute and deliver to such Holder replacement Note or Notes, which may involve executing
multiple Notes with split amounts to reflect partial assignments. Promptly upon receipt of such replacement Note or Notes, such Holder
shall deliver the original Note back to the Company or, if the original Note is lost or stolen, provide an affidavit to the Company to
that effect.
Section
4. Conversion
a) Voluntary Conversion.
At any time after the Original Issue Date, all Obligations with respect to this Note shall be convertible, in whole or in part, into shares
of Common Stock at the option of the Holder, in its sole discretion, at any time and from time to time (subject to the conversion limitations
set forth in Section 4(d)). The Holder shall effect conversions by delivering to the Company a Notice of Conversion, the form of
which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the amount of such
Obligations to be converted and the date on which such conversion shall be effected (such date, the “Conversion Date”).
If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is
deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of
guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required
to physically surrender this Note to the Company unless the entire principal amount of this Note, plus all accrued and unpaid interest
thereon, has been converted. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note by
an amount equal to the applicable conversion. The Holder and the Company shall maintain a Conversion Schedule, containing at a minimum
the information shown on Schedule 1, and showing historically, among other things, the principal amounts converted and the date
of such conversions. The Company may deliver an objection to any Notice of Conversion within one (1) Business Day of delivery of such
Notice of Conversion. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in
the absence of manifest error.
9
b) Conversion Price.
Subject to the other provisions of this Note, the conversion price in effect on any Conversion Date (the “Conversion Price”)
shall be equal to $0.50, subject to adjustment as provided herein; provided, that in no event shall the Conversion Price be less than
the Floor Price.
c) Mechanics of Conversion.
i. Conversion
Shares Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be
determined by the quotient obtained by dividing (x) the outstanding principal amount and interest of this Note to be converted by (y)
the Conversion Price.
ii. Delivery
of Certificate Upon Conversion. Not later than one (1) Trading Day after each Conversion Date (the “Share Delivery Date”),
the Company shall deliver, or cause to be delivered, to the Holder a certificate or certificates representing the Conversion Shares which,
on or after the date on which such Conversion Shares are eligible to be sold under Rule 144 without the need for current public information
and the Company has received an opinion of counsel to such effect, which such opinion must be acceptable to the Holder in its sole and
absolute discretion (which opinion the Company shall be responsible for obtaining at its sole cost and expense) shall be free of restrictive
legends and trading restrictions, representing the number of Conversion Shares being acquired upon the conversion of this Note. Each certificate
required to be delivered by the Company under this Section 4(c) shall be delivered electronically through the Depository Trust
Company or another established clearing corporation performing similar functions. If the Conversion Date is prior to the date on which
such Conversion Shares are eligible to be sold under Rule 144 without the need for current public information, or there is no registration
statement in effect covering the Conversion Shares, the Conversion Shares shall bear a restrictive legend in the following form, as appropriate:
“THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES REGULATIONS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL
BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT
TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”
Notwithstanding the foregoing, commencing
on such date that the Conversion Shares are eligible for sale under Rule 144 subject to current public information requirements, the Company,
upon written request and at the sole cost and expense of the Company, shall obtain a legal opinion that is acceptable to the Holder in
its sole and absolute discretion, to allow for such sales under Rule 144.
10
iii. Reservation
of Conversion Shares. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued
shares of Common Stock a number of shares of Common Stock at least equal the Reserve Amount for the sole purpose of issuance upon conversion
of this Note and payment of interest on this Note, each as herein provided, free from preemptive rights or any other actual contingent
purchase rights of Persons other than the Holder (and the other holders of the Purchase Agreement Notes). The Company covenants that all
shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
The Company shall calculate and readjust the Reserve Amount on the first Business Day of each month so long as any Purchased Security
remains outstanding.
iv. Fractional
Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction
of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay
a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up
to the next whole share.
v. Transfer Taxes
and Expenses. The issuance of certificates for shares of the Common Stock on conversion of this Note shall be made without charge
to the Holder hereof for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates,
provided, that, the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the
issuance and delivery of any such certificate upon conversion in a name other than that of the Holder of this Note so converted and the
Company shall not be required to issue or deliver such certificates unless or until the Person or Persons requesting the issuance thereof
shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been
paid. The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion
vi. Failure to
Deliver Certificates. If, in the case of any Notice of Conversion, such certificate or certificates are not delivered to or as directed
by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Company at any time
on or before its receipt of such certificate or certificates, to rescind such Conversion, in which event the Company shall promptly return
to the Holder any original Note delivered to the Company and the Holder shall promptly return to the Company the Common Stock certificates
issued to the Holder pursuant to the rescinded Notice of Conversion.
vii. Obligation
Absolute; Partial Liquidated Damages. The Company’s obligations to issue and deliver the Conversion Shares upon conversion of
this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to
enforce the same, the existence of any Default or Event of Default, any waiver or consent with respect to any provision hereof, the recovery
of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination,
or any breach or alleged breach by the Holder or any other Person of any obligation to the Company or any violation or alleged violation
of Regulations by the Holder or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation
of the Company to the Holder in connection with the issuance of such Conversion Shares; provided, that such delivery shall not
operate as a waiver by the Company of any such action the Company may have against the Holder. In the event the Holder of this Note shall
elect to convert any or all of the outstanding principal or interest amount hereof, the Company may not refuse conversion based on any
claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of Regulation, Contractual
Obligation or for any other reason, unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of
all or part of this Note shall have been sought. If the injunction is not granted, the Company shall promptly comply with all conversion
obligations herein. If the injunction is obtained, the Company must post a surety bond for the benefit of the Holder in the amount of
one hundred fifty percent (150%) of the outstanding principal amount of this Note, which is subject to the injunction, which bond shall
remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to
the Holder to the extent it obtains judgment. In the absence of seeking such injunction, the Company shall issue Conversion Shares (or,
where applicable and required hereunder, cash), upon a properly noticed conversion. If the Company fails for any reason to deliver to
the Holder such certificate or certificates pursuant to Section 4(c)(ii) by the Share Delivery Date, the Company shall pay to the
Holder, in cash, as liquidated damages and not as a penalty, $1,000 per Trading Day for each Trading Day after such Share Delivery Date
until such certificates are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue
actual damages or declare an Event of Default pursuant to Section 7 for the Company’s failure to deliver Conversion Shares
within the period specified herein and the Holder shall have the right to pursue all remedies available to it hereunder, at law or in
equity including a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Holder
from seeking to enforce damages pursuant to any other Section hereof or under applicable Regulation.
11
viii. Compensation
for Buy-In on Failure to Timely Deliver Certificates Upon Conversion. In addition to any other rights available to the Holder, if
the Company fails for any reason to deliver to the Holder such certificate or certificates by the Share Delivery Date pursuant to Section
4(c)(ii), and if after such Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction
or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by
the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such Share Delivery Date
(a “Buy-In”), then the Company shall (A) pay in cash to the Holder (in addition to any other remedies available to
or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions)
for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled
to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation
was executed (including any brokerage commissions) and (B) at the option of the Holder, in its sole discretion, either reissue (if surrendered)
this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed
rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Company had timely complied
with its delivery requirements under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase
price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of
the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause
(A) of the immediately preceding sentence, the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company
written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the
amount of such loss. Nothing herein shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law
or in equity including a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely
deliver certificates representing shares of Common Stock upon conversion of this Note as required pursuant to the terms hereof.
ix. No Limitation
on Damages. More generally, nothing in this Section 4, including the availability of the option to convert the Note, shall
limit the Holder’s right to pursue actual damages or declare an Event of Default pursuant to Section 7 and the Holder shall
have the right to pursue all remedies available to it hereunder, at law or in equity including a decree of specific performance and/or
injunctive relief. The exercise of any rights under this Section 4 shall not prohibit the Holder from seeking to enforce damages
pursuant to any other Section hereof or under applicable Regulation.
d) Holder’s Conversion
Limitations. The Company shall not effect any conversion of principal or interest of this Note, and the Holder shall not have the
right to convert any principal or interest of this Note, to the extent that after giving effect to the conversion set forth on the applicable
Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any Persons acting as a group together with the Holder
or any of the Holder’s Affiliates, the “Attribution Parties”) would beneficially own in excess of the Beneficial
Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned
by the Holder and its Attribution Parties shall include the number of Conversion Shares issuable upon conversion of this Note with respect
to which such determination is being made, but shall exclude the number of shares of Common Stock issuable upon (i) conversion of the
remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Attribution Parties and (ii) exercise
or conversion of the unexercised or unconverted portion of any other Securities of the Company subject to a limitation on conversion or
exercise analogous to the limitation contained herein (including any other Notes) beneficially owned by the Holder or any of its Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 4(d), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation
contained in this Section 4(d) applies, the determination of whether this Note is convertible (in relation to other Securities
owned by the Holder together with any Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole
discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether
this Note may be converted (in relation to other Securities owned by the Holder together with any Attribution Parties) and which principal
amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction,
the Holder will be deemed to represent to the Company each time it delivers a Notice of Conversion that such Notice of Conversion has
not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of
such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section
13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 4(d), in determining
the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as stated in
the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the SEC, as the case may be,
(ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer
agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of the Holder, the Company shall
within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of Securities
of the Company, including this Note, by the Holder or its Attribution Parties since the date as of which such number of outstanding shares
of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of the Common
Stock outstanding immediately after giving effect to the issuance of all Conversion Shares to be held by the Holder. The Holder, upon
not less than sixty-one (61) days’ prior notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions
of this Section 4(d); provided, that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares
of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note
held by the Holder. Any such increase or decrease will not be effective until the sixty-first (61st) day after such notice
is delivered to the Company. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a
manner otherwise than in strict conformity with the terms of this Section 4(d) to correct this paragraph (or any portion hereof)
which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 4(d) shall apply to
a successor Holder of this Note.
12
e) Exchange Cap. The
Company shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note if the
issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion
of this Note or otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations
of the Principal Trading Market for the Common Stock (the number of shares which may be issued without violating such rules and regulations,
the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (i) obtains the approval
of its stockholders as required by the applicable rules of such Principal Trading Market for issuances of shares of Common Stock in excess
of such amount or (ii) obtains a written opinion from outside counsel to the Company that such approval is not required, which opinion
shall be in form and substance reasonably satisfactory to the Holder. Until such approval or such written opinion is obtained, the Holder
shall not be issued in the aggregate, upon conversion of this Note or otherwise pursuant to the terms of this Note, shares of Common Stock
in an amount greater than the product of (A) the Exchange Cap as of the proposed date of issuance for such shares multiplied by (B) the
quotient of (1) the aggregate original Principal Amount of this Note when issued to the applicable Purchaser pursuant to the Purchase
Agreement divided by (2) the aggregate original Principal Amount of all Purchase Agreement Notes when issued (the “Exchange Cap
Allocation”). In the event that the Holder sells or otherwise transfer any portion of this Note, the transferee shall be allocated
a pro rata portion of the Holder’s Exchange Cap Allocation with respect to such portion of this Note so transferred, and the restrictions
of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee.
Upon conversion in full of any holder of any Purchase Agreement Note, the difference (if any) between such holder’s “exchange
cap allocation” (under and as defined in such Purchase Agreement Note) and the number of shares of Common Stock actually issued
to such holder upon such holder’s conversion in full of any Purchase Agreement Note shall be allocated to the respective Exchange
Cap Allocations of the remaining holders of such Purchase Agreement Notes (including the Holder) on a pro rata basis in proportion to
the shares of Common Stock underlying such Purchase Agreement Notes then held by each such holder. In the event that the Company is prohibited
from issuing any shares of Common Stock pursuant to this Section 4(e)(the “Exchange Cap Shares”) to the Holder,
the Company shall pay cash to the Holder in exchange for the redemption of such portions of this Note that are not convertible into such
Exchange Cap Shares at a price equal to the sum of (A) the product of (1) such number of Exchange Cap Shares and (2) the Closing Sale
Price on the Trading Day immediately preceding the date the Holder delivers the applicable Notice of Conversion with respect to such Exchange
Cap Shares to the Company, and (B) to the extent the Holder purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Holder of Exchange Cap Shares, brokerage commissions, if any, of the Holder incurred in connection
therewith.
Section
5. Certain Adjustments
a) Stock Dividends and
Stock Splits. If the Company, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a Restricted
Payment payable in shares of Common Stock on shares of Common Stock or any Stock Equivalents (which, for avoidance of doubt, shall not
include any shares of Common Stock issued by the Company upon conversion of, or payment of interest on, this Note), (ii) subdivides outstanding
shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of
Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares
of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number
of shares of Common Stock (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section
5(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend
or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Change in Option Price
or Rate of Conversion. If the purchase or exercise price provided for in any options to purchase Common Stock, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Stock Equivalents into Common Stock, or the rate at which any
Stock Equivalents are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other
than any change to the Conversion Price in this Note or any changes to the exercise price in the Warrants), the Conversion Price in effect
at the time of such increase or decrease shall be adjusted to account proportionately, for such increase or decrease. For purposes of
this Section 5(b), if the terms of any option or Stock Equivalents are increased or decreased in the manner described in the immediately
preceding sentence, then such option or Stock Equivalents and the shares of Common Stock deemed issuable upon exercise, conversion or
exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section
5(b) shall be made to the Conversion Price if such adjustment would result in an increase to the Conversion Price.
c) Subsequent Equity Sales.
If any Company Party or any Subsidiary thereof, at any time while any Obligation is outstanding or the Holder has not yet received any
Conversion Shares in connection with a conversion, shall sell or grant any option to purchase, or sell or grant any right to reprice,
or otherwise dispose of or issue (or announce any offer, sale, grant or any option to purchase or other disposition) any shares of Common
Stock or Stock Equivalents convertible or exchangeable into Common Stock, in each case other than as an Exempt Issuance, at an effective
price per share that, after giving effect to any other adjustment provided in this Note, is less than the Conversion Price then in effect
(such lower price, the “Base Share Price” and such issuances collectively, a “Dilutive Issuance”)
then, simultaneously with the consummation of each Dilutive Issuance the Conversion Price shall be reduced and only reduced to equal the
Base Share Price. For the avoidance of doubt, it is understood and agreed that if a holder of the shares of Common Stock or Stock Equivalents
so issued shall, at any time after the issuance, whether by operation of purchase price adjustments, reset provisions, floating conversion,
exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance,
be entitled to receive shares of Common Stock at an effective price per share that is less than the Conversion Price, such issuance shall
be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance at such effective price. Such adjustment
shall be made whenever such shares of Common Stock or Stock Equivalents are issued. No later than 8:00 am on the Trading Day following
the issuance or deemed issuance of any shares of Common Stock or Stock Equivalents subject to this Section 5(c), the Company shall
(i) notify the Holder, in writing, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion
price and other pricing terms (such notice, the “Dilutive Issuance Notice”) and (ii) publicly disclose the transaction
resulting in such issuance or deemed issuance in a filing with the SEC. For purposes of clarification, whether or not the Company provides
a Dilutive Issuance Notice pursuant to this Section 5(c), upon the occurrence of any Dilutive Issuance, the Holder is entitled
to receive a number of Conversion Shares based upon the Base Share Price regardless of whether the Holder accurately refers to the Base
Share Price in the Notice of Conversion.
13
d) Pro Rata Distributions.
While this Note is outstanding, the Company shall not declare or make any Restricted Payment (or rights to receive Restricted Payments).
In the event that the Note is repaid at the time of such Restricted Payment, the Holder shall not be entitled to participate in such Restricted
Payment. If the Holder and the Company mutually agree, and the Note is not repaid at the time of such Restricted Payment, then the Holder
shall be entitled to participate in such Restricted Payment to the same extent that the Holder would have participated therein if the
Holder had held the number of shares of Common Stock acquirable upon complete exercise of this Note (without regard to any limitations
on exercise hereof, including the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Restricted
Payment, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the
participation in such Restricted Payment (provided, that to the extent that the Holder’s right to participate in any such
Restricted Payment would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to
participate in such Restricted Payment to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such
Restricted Payment to such extent) and the portion of such Restricted Payment shall be held in abeyance for the benefit of the Holder
until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
e) Effect of Fundamental
Transactions. Upon the occurrence of any Fundamental Transaction, the Holder, upon any subsequent conversion of this Note, shall have
the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence
of such Fundamental Transaction (without regard to any limitation in Section 4(c) on the conversion of this Note), any consideration
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible
(or holder of any equity Securities of any Company Party) immediately prior to such Fundamental Transaction (without regard to any limitation
in Section 4(c) on the conversion of this Note) (the “Alternate Consideration”), including shares of Common
Stock of any successor or acquiring corporation or of the Company, in the case of a merger where it is the surviving entity. To the extent
such Alternate Consideration includes Securities, the Holder shall have the option to either treat the Note as converted on the date of
consummation of such Fundamental Transaction and obtain such Securities outright or adjust the Conversion Shares to include such additional
Securities. For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to
such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company Parties shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting
the relative value of any different components of the Alternate Consideration. In a Fundamental Transaction where holders of Common Stock
(or, as the case may be, Securities of any Company Party) are given any choice as to the Alternate Consideration to be received in a Fundamental
Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this
Note following such Fundamental Transaction. The Company shall cause any acquiring, successor, surviving or replacement entities in any
Fundamental Transaction (the “Successor Entity”) to become a Company Party effective immediately upon the consummation
of such Fundamental Transaction and shall become a party to all Transaction Documents in the same capacity and to the same extent as the
Company Party involved in such Fundamental Transaction and, if such Fundamental Transaction involves the Company, from and after the date
of such Fundamental Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company”
shall, without any further action, refer instead to the Successor Entity or to both Companies, as appropriate. In the case of a Fundamental
Transaction resulting in the Company no longer be in existence, the Successor Entity shall succeed to all obligations of the Company and
may exercise every right and power of the Company and shall assume all of the Obligations of the Company with the same effect as if such
Successor Entity had been named as the Company herein. The parties hereto shall amend all Transaction Documents (or execute new Transaction
Documents, including replacement Notes and an assumption of the Company’s Obligations) to reflect such change; provided that
the failure to amend or execute any such Transaction Document shall not render this clause (e) ineffective. For the avoidance of
doubt, this clause (e) is not intended to permit any Fundamental Transaction. The Company shall ensure that the Holder approves
all drafts of such amendments and new Transaction Documents prior to the consummation of, and as a condition to the consummation of, such
Fundamental Transaction. Without limitation, if the Fundamental Transaction involves the Company, the definition of Conversion Shares
and Conversion Price hereunder shall be adjusted to include Securities of the Successor Entity and to ensure the new Notes of the Holder
convert into Securities so as to protect the economic value of this Note, taking into account the relative values of the existing and
replacement Conversion Shares, and give the Holder upon conversion of this Note the Conversion Shares equivalent to the Conversion Shares
it would have received upon conversion of this Note prior to such Fundamental Transaction at an equivalent Conversion Price.
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f) Calculations. All
calculations under this Section 5 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 5, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding any treasury shares of the Company) issued and outstanding.
g) Notices to the Holder.
i. Adjustments
to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 5, the Company shall
not later than 8:00 am on the Trading Day following such adjustment (i) deliver to each Holder a notice setting forth the Conversion Price
after such adjustment and setting forth a statement of all of the facts requiring such adjustment and the calculation thereof, and (ii)
publicly disclose the transaction resulting in such adjustment in a filing with the SEC. Notwithstanding anything in this Section 5
to the contrary, no adjustment pursuant to this Section 5 shall increase the Conversion Price other than proportional increases
upon the occurrence of a reverse stock split in accordance with Section 5(a). For the avoidance of doubt, the Holder will be entitled
to each such adjustment on the terms set forth in this Agreement whether or not the Company provides such notice, and the calculation
set forth in such notice shall not be binding on the Holder.
ii. Notice to
Allow Conversion by Holder. If (A) the Company shall declare a dividend (or any other distribution or other Restricted Payment in
whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common
Stock, (C) the Company shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase
any shares of Capital Stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all
or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other Securities,
cash or property or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs
of the Company, then, in each case, the Company shall cause to be filed at each office or agency maintained for the purpose of conversion
of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear upon the Note Register, at least twenty
(20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the
date as of which the holders of the Common Stock of record to be entitled to such dividend, distribution, Restricted Payment, redemption,
rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share
exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record
shall be entitled to exchange their shares of the Common Stock for Securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided, that the failure to deliver such notice or any defect therein
or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall
remain entitled to convert this Note during the 20-day period commencing on the date of such notice through the effective date of the
event triggering such notice except as may otherwise be expressly set forth herein.
Section
6. NEGATIVE COVENANTS
a) As long as the outstanding
principal amount of the Notes exceeds $200,000.00, no Company Party shall, and no Company Party shall permit any of its Subsidiaries to,
directly or indirectly, do, or enter into any agreement to do, any of the following (except for Sections 6(a)(xiii) and (ix) which shall
be binding on each Company Party and all its Subsidiaries so long as any portion of this Note or any other Obligations is not paid in
full):
i. create, incur,
assume, enter into or suffer to exist, any Indebtedness (other than Permitted Debt) or any Guaranty Obligations with respect thereto,
or repay the principal amount of, redeem, purchase or otherwise acquire or offer to repay the principal amount of, redeem, repurchase
or otherwise acquire, any Indebtedness (other than Permitted Debt) or any Guaranty Obligation with respect thereto, whether or not existing
on the Original Issue Date (other than the Purchase Agreement Notes on a pro rata basis based on the principal amounts outstanding);
15
ii. create, incur,
assume, permit or suffer to exist any Lien of any kind, on or with respect to any of its assets now owned or hereafter acquired or any
interest therein or any income or profits therefrom, other than the Liens securing the Obligations created pursuant to the Transactions
Documents and Permitted Liens;
iii. Sell any of
its assets other than disposition of assets in the ordinary course of business;
iv. make, approve,
or offer to make any Restricted Payment with respect to any shares of Capital Stock (other than the issuance and distribution of the Transaction
Securities, and then only as otherwise required under the Transaction Documents);
v. issue any Capital
Stock to any Related Party that is not a Company Party or a Subsidiary of any Company Party, except for Exempt Issuances;
vi. consummate a
Fundamental Transaction, amend its charter documents in any manner that materially and adversely affects any rights of the Holder or change
the nature of its business from the business conducted by it on the date hereof (and, after the consummation of the Business Combination,
the business conducted by any party to the Business Combination on the date hereof);
vii. enter into
any other transaction with, or make any other payment to, any Related Party of the Company that is not a Company Party or Subsidiary of
any Company Party, including (A) investments by any Company Party or any Subsidiary thereof in such other Related Party, whether in Capital
Stock, Stock Equivalents, other Securities, Indebtedness owing by such Related Party or otherwise, or Indebtedness owing to any such other
Related Party and (B) transfers, sales, leases, assignments or other acquisitions or dispositions of any asset), except for (x) payments
with respect to Permitted Debt permitted pursuant to Section 6a)(i) above, (y) transactions in the ordinary course of business
on a basis no less favorable to the Company Parties and their Subsidiaries as would be obtained in a comparable arm’s length transaction
with a Person not a Related Party and that are expressly approved by a majority of the disinterested directors of the Company (even if
less than a quorum otherwise required for board approval) and (z) salaries and other director or employee or other staff or agent compensation,
including expense reimbursements and employee benefits, of the Company Parties and their Subsidiaries that, in the case of officers, directors
and employees, staff and agents that are also Related Parties even if their employee, staff or agent relationship is not taken into account,
does not include any increase from the compensation in effect on, and disclosed to the Collateral Agent and the Holder on or before the
date hereof;
viii. fail to use
the proceeds of the Note as represented in Section 3.1(gg) of the Purchase Agreement (including by being engaged in operations
involving the financing of any investments or activities in, or any payments to, any Sanctioned Person) or conduct its business in a manner
that causes it to become an “investment company” subject to registration under the Investment Company Act of 1940, as amended,
or a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended) or fail
to provide a certification to the Holder with respect to any of the foregoing items in this clause (viii) upon the Holder’s
request; or
ix. directly or
indirectly (including through agents, contractors, trustees, representatives or advisors) (a) be in violation of any Sanctions Law or
engage in, or conspire or attempt to engage in, any transaction evading or avoiding any prohibition in any Sanctions Law, (b) be a Sanctioned
Person or derive revenues from investments in, or transactions with Sanctioned Persons, (c) have any assets located in Sanctioned Jurisdictions,
(d) deal in, or otherwise engage in any transactions relating to, any property or interest in property blocked pursuant to any Regulation
administered or enforced by OFAC or (e) fail to comply with any material Regulations or Contractual Obligations applicable to it or fail
to obtain or comply with any material Permits.
16
Section
7. Events of Default
a) “Event of Default”
means, wherever used herein, any of the following events (whatever the reason for such event and whether such event shall be voluntary
or involuntary or effected by Regulation or pursuant to any judgment, decree or order of any court, or any order, rule or Regulation of
any Governmental Authority):
i. any default in
the payment of (A) the principal amount of this Note when due or (B) any interest, fees, liquidated damages or any other Obligation owing
to the Holder, the Collateral Agent or any of their Purchaser Parties under any Transaction Document, within (5) Business Days after such
principal, interest, fee, liquidated damage or other Obligation shall become due and payable, whether on the Maturity Date or otherwise;
ii. any Company
Party shall fail for any reason to comply with Section 2.3(a) (Deliveries to Initial Purchasers), Section 2.4 (Post-Closing Deliveries)
or Section 4.11 (Trading Activities of Purchasers) of the Purchase Agreement or Section 2(b), Section 2(f), Section
4(c) (including Section 4(c)(iii)), Section 6, Section 8(k) Section 8(l) of this Note or any other Section of this Note
or any Transaction Document that provides for an action after a notice period or that provides a specific period of time for the Company
Parties to comply with;
iii. any representation
or warranty made by any Company Party in this Note, any other Transaction Document, any other Contractual Obligation with, or any other
report, financial statement, document, written statement or certificate made or delivered to, the Holder or any other Holder Party shall
be untrue or incorrect in any material respect as of the date when made or deemed made;
iv. any Company
Party shall provide at any time notice to the Holder, including by way of public announcement, of such Company Party’s intention
to not honor any provision of this Note or any other Transaction Document (including requests for conversions of this Note in accordance
with the terms hereof);
v. any Company Party
shall fail to observe or perform any other covenant, provision, or agreement contained in this Note or any other Transaction Document
which failure is not cured, if possible to cure, within the earlier to occur of (A) five (5) Trading Days after notice of such failure
sent by the Holder or by any other Holder Party to the Company and (B) ten (10) Trading Days after any Company Party has become or should
have become aware of such failure;
vi. a breach, default
or event of default (without regard for any cure period therefor provided therein) shall have occurred under any Indebtedness of any Company
Party (A) having (individually or in the aggregate for all such Indebtedness) an aggregate maximum principal amount or commitment greater
than Two Hundred Thousand Dollars ($200,000), or (B) any such Indebtedness shall become or be declared due and payable prior to the date
on which it would otherwise become due and payable;
vii. a breach, default
or event of default (without regard to any grace or cure period provided in the applicable agreement, document or instrument or any subsequent
waiver or other modification thereto) shall have occurred under any other Contractual Obligation to which any Company Party is obligated
that, if determined to be adverse to any Company Party, could reasonably be expected to result in any injunction affecting any Company
Party or any Loss to the Company Parties in excess of Two Hundred Thousand Dollars ($200,000);
viii. any monetary
judgment, writ or similar final process shall be entered or filed against any Company Party, any Subsidiary of any Company Party or any
of their assets for an injunction or for monetary damages of more than Two Hundred Thousand Dollars ($200,000), and such judgment, writ
or similar final process shall remain unvacated, unbonded or unstayed for a period of forty-five (45) calendar days;
ix. the occurrence
of any levy upon or seizure or attachment of, or any uninsured loss of or damage to, any asset of any Company Party or any Subsidiary
of any Company Party having an aggregate fair value or repair cost (as the case may be) in excess of Two Hundred Thousand Dollars ($200,000)
individually or in the aggregate, and any such levy, seizure or attachment shall not be set aside, bonded or discharged within forty-five
(45) after the date thereof;
17
x. (A) any Company
Party or any Subsidiary (as such term is defined in Rule 1-02(w) of Regulation S-X) of any Company Party shall commence a case or other
Proceeding under any bankruptcy, reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency, winding
up, reorganization, arrangement, adjustment, protection, relief or composition of debts or liquidation or similar Regulation of any jurisdiction
relating to the Company or any such Subsidiary or any Proceeding seeking the entry of an order for relief or the appointment of a custodian,
receiver, trustee, liquidator or other similar official for it or for any of its assets, (B) any such case or other Proceeding shall be
commenced against any Company Party or any such Subsidiary by any other Person and such case or other Proceeding is not dismissed within
forty-five (45) days after commencement, (C) any Company Party or any such Subsidiary shall be adjudicated insolvent or bankrupt or any
order of relief or other order approving any such case or other Proceeding is entered, (D) any Company Party or any such Subsidiary shall
generally not pay its debts as such debts become due, shall admit in writing its inability to pay its debts as they mature or shall make
a general assignment for the benefit of creditors, (E) any Company Party or any such Subsidiary thereof shall call a meeting of its creditors
with a view to arranging a composition, adjustment or restructuring of its debts or (F) any Company Party or any such Subsidiary, by any
act or failure to act, shall expressly indicate its consent to, approval of or acquiescence in any of the foregoing or takes any corporate
or other action (including convening a meeting of the board) to authorize or otherwise for the purpose of effecting any of the foregoing;
xi. the occurrence
of any Change of Control Transaction;
xii. (A) the Common
Stock shall become “penny stock” as defined in Regulations for purposes of 3(a)(51) of the Exchange Act, (B) there shall be
no Trading Market for the Common Stock and the Common Stock shall not be eligible for listing or quotation for trading thereon and shall
not be eligible to resume listing or quotation for trading thereon within five (5) Trading Days or (C) the transfer of shares of Common
Stock through the Depository Trust Company System shall become no longer available or shall be “chilled”;
xiii. the Company
shall not meet the current public information requirements under Rule 144, and such failure is not cured, if it is possible to cure it,
within two (2) Trading Days after the expiration of the applicable grace period permitted under Rule 12b-25 of the Exchange Act; unless
the Company files a Form 12b-25 for the relevant report required to meet the current public information requirements under Rule 144;
or
xiv. the Company
shall fail to deliver Common Stock by the Share Delivery Date upon conversion of any portion of this Note.
The clauses in the definition of “Event
of Default” above operate independently, so that any action or event that falls within any such clause shall constitute an Event
of Default regardless of, whether because of a grace period or threshold or otherwise, it falls outside the language of any other clause.
18
b) Remedies Upon Event
of Default. If any Event of Default occurs, then the outstanding principal amount of this Note and all other Obligations shall become,
at the Holder’s election in its sole discretion, in whole or in part (or, in the case of and Event of Default described in Section
7(a)(x)(A) through (C), in whole, automatically and without the need for any notice, demand or any other action by the Collateral
Agent or the Holder all of which are hereby waived), immediately due and payable, in cash (while remaining subject to the Holder’s
conversion option). In connection with such acceleration described herein, the Holder need not provide, and the Company hereby waives,
any presentment, demand, protest or other notice of any kind (other than the Holder’s election to declare such acceleration), and
the Holder may immediately and without expiration of any grace period enforce any and all of its rights and remedies hereunder and all
other remedies available to it under applicable Regulations. Such acceleration may be rescinded and annulled by Holder at any time prior
to payment hereunder and the Holder shall have all rights as a holder of the Note until such time, if any, as the Holder receives full
payment pursuant to this Section 7(b). No such rescission or annulment shall affect any subsequent Default or Event of Default
or impair any right consequent thereon.
Section
8. Miscellaneous
a) Notices. Any and
all notices or other communications or deliveries to be provided by the Holder hereunder, including any Notice of Conversion, shall be
in writing and delivered as set forth in Section 6.4 (Notices) of the Purchase Agreement. All notices and other communications
delivered hereunder shall be effective as provided in the Purchase Agreement.
b) Absolute Obligation.
Except as expressly provided herein, no provision of this Note shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, liquidated damages and accrued interest, as applicable, on this Note, without set off or counterclaim,
at the time, place, and rate, and in the coin or currency, herein prescribed. This Note is a direct debt obligation of the Company. This
Note ranks pari passu with all other Purchase Agreement Notes now or hereafter issued under the terms set forth in the Transaction
Documents and is at least pari passu with all Indebtedness and other obligations of the Company, and is not subordinated to any
such Indebtedness or other obligation.
c) Lost or Mutilated Note.
If this Note shall be mutilated, lost, stolen or destroyed, the Company shall execute and deliver, in exchange and substitution for and
upon cancellation of a mutilated Note, or in lieu of or in substitution for a lost, stolen or destroyed Note, a new Note for the principal
amount of this Note so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such
Note, and of the ownership hereof, reasonably satisfactory to the Company.
d) Dispute Resolution.
i. In the case of
a dispute relating to, or, when an agreement between the Company and the Holder is required hereunder, an inability to agree on, a Conversion
Price, a Closing Bid Price, a Closing Sale Price, a VWAP or a fair market value (as the case may be) (including, without limitation, a
dispute relating to the determination of any of the foregoing), the Company or the Holder (as the case may be) shall submit the dispute
to the other party via facsimile or electronic transmission (A) if by the Company, within two (2) Trading Days after the occurrence of
the circumstances giving rise to such dispute or (B) if by the Holder at any time after the Holder learned of the circumstances giving
rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute, at any time after the second (2nd)
Trading Day following such initial notice, then the Holder may, at its sole option, select an independent, reputable investment bank to
resolve such dispute.
ii. The Holder and
the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance with clause
d) and (B) written documentation (together with such copy of such submission, the “Required Dispute Documentation”)
supporting its position with respect to such dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th)
Trading Day immediately following the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”)
. If either party fails to so deliver all of the Required Dispute Documentation by the Dispute Submission Deadline, then such party shall
no longer be entitled to (and hereby waives its right to) deliver or submit any document or other supporting evidence to such investment
bank with respect to such dispute and such investment bank shall resolve such dispute based solely on the Required Dispute Documentation
that was delivered to such investment bank prior to the Dispute Submission Deadline. Unless otherwise agreed to in writing by both the
Company and the Holder or otherwise requested by such investment bank, neither the Company nor the Holder shall be entitled to deliver
or submit any written documentation or other support to such investment bank in connection with such dispute other than the Required Dispute
Documentation.
iii. The Company
and the Holder shall ensure that such investment bank determines the resolution of such dispute and notify the Company and the Holder
of such resolution no later than ten (10) Trading Days immediately following the Dispute Submission Deadline. The fees and expenses of
such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final
and binding upon all parties absent manifest error.
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e) Governing Law; Courts.
As provided in Section 6.6 (Governing Law; Courts) of the Purchase Agreement, this Note, and all claims, disputes, Proceedings (other
than as set forth in clause (d) above) and matters related hereto or arising hereunder or arising from or relating to the relationship
among any of the parties hereto, are governed by, and shall be construed, interpreted and enforced exclusively in accordance with, the
laws of the State of Delaware (without giving effect to the conflict of laws provisions thereof to the extent such principles or rules
would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware). Any such Proceeding
shall be brought exclusively in the Delaware state courts sitting in Wilmington, DE or the federal courts of the United States of America
for the District of Delaware sitting in Wilmington, DE; provided, that the Collateral Agent, the Holder and the other Purchaser Parties
may bring Proceedings in other jurisdictions to enforce this Note. The parties hereto have accepted such jurisdiction and waived venue
and other objections and have agreed to the means for service of process in such Section 6.6.
f) Characterizations. The
Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein.
Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the
amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company
(or the performance thereof).
g) Payments on Next Business
Day. Whenever any payment Obligation shall be due on a day other than a Business Day, such payment shall be due instead on the next
succeeding Business Day.
h) Payment of Collection,
Enforcement and Other Costs. In addition to, and not in substitution for and not to limit (but without duplication), any other right
to reimbursement under this Note or any other Transaction Document, (i) this Note is placed in the hands of an attorney for collection
or enforcement or is collected or enforced through any Proceeding or the Holder otherwise takes action to collect amounts due under this
Note or to enforce the provisions of this Note or (ii) there occurs any bankruptcy, reorganization, receivership of the Company or other
Proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay all out-of-pocket
costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership
or other Proceeding, including, but not limited to, attorneys’ fees and disbursements.
i) Security Interest.
The Obligations of the Company Parties under this Note and the other Transaction Documents are secured by the Security Agreement and the
Intellectual Property Security Agreement, as well as other Transaction Documents.
j) Use of Proceeds.
All proceeds of the purchase of this Note and the other Purchased Securities shall be used as provided in the Purchase Agreement.
k) Non-Public Information.
Except with respect to the Transaction Documents and the transactions contemplated thereunder, which shall be disclosed as provided in
the Purchase Agreement, each Company Party covenants and agrees that neither it, nor any other Person acting on its behalf has
provided nor will provide the Holder or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto the Holder shall have consented to the receipt of such information
and agreed with the Company to keep such information confidential. Any non-disclosure agreement entered into with the Holder and any Company
Party are terminated as provided in Section 4.9 (Securities Laws Disclosures) of the Purchase Agreement. The Holder does not have
any duty of confidentiality (or a duty not to trade on the basis of material non-public information) to any Company Party or any of their
Affiliates, or any of their respective officers, directors, agents, members, stockholders, managers, employees and is governed only by
application Regulations. Each Company Party understands and confirms that the Holder shall be relying on all of the foregoing covenants
in trading Securities of the Company.
l) Public Disclosures.
The Company Parties and the Holder shall consult with each other in issuing any other public disclosure with respect to the transactions
contemplated hereby, and no Company Party or the Holder shall issue any such public disclosure nor otherwise make any such public statement
without the prior consent of the Company and the Holder, each of which consent shall not unreasonably be withheld or delayed, except if
such disclosure is reasonably viewed as required by any Regulation, in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication. Notwithstanding the foregoing, no Company Party shall, and each Company
Party shall ensure that their Subsidiaries do not, publicly disclose the name, trademark, service mark, symbol, logo (or any abbreviation,
contraction or simulation thereof) of, or otherwise refer to, the Holder or any other Purchaser Party (including in any filing with the
SEC, regulatory agency or Trading Market for any Securities of any Company Party or their Subsidiaries, including the 8-K filing referenced
above) without the prior consent of the Holder and the Collateral Agent (including in any press release, letterhead, public announcement
or marketing material), except, and then only after consulting with such Holder and the Collateral Agent, to the extent required to do
so under applicable Regulations (including as required in any registration statement filed with the SEC). None of the Company Parties
and their Affiliates shall represent that any Company Party or any of its Affiliates, any product or service of the Company Parties or
their Affiliates, or any know how or policy or practice of the Company Parties or their Affiliates has been approved or endorsed by any
Purchaser Party.
20
m) Interpretation. This
Note is a Transaction Document and as such is subject to various interpretative, amendment and third party beneficiary and other miscellaneous
provisions set forth in the Purchase Agreement that expressly apply to Transaction Documents, located principally in Article VI (Miscellaneous)
thereof (including Section 4.9 (Securities Law Disclosures) which, among other things, restrict public disclosures of the name
of the Holder, Section 6.15 (Interpretation) that provides, among other things, that payments due on a day that is not a Business
Day may be made on the next Business Day), as well as, without limitation, set off provisions in Section 6.5 (Set Off) thereof
whereby amounts owing hereunder may be set off against amounts owed by the Holder and certain related entities, indemnification and expense
reimbursement provisions in Sections 4.14 (Indemnification of Each Purchaser Party) and 6.2 (Fees and Expenses) thereof
that benefit the Holder, among others. In particular, without limitation, (i) none of the terms or provisions of this Note may be waived,
amended, supplemented or otherwise modified except in accordance with Section 6.3(b) (Amendments) of the Purchase Agreement and
(ii) as described in Section 6.3(a) (Entire Agreement) of the Purchase Agreement, this Note and the other Transaction Documents
contain and constitute the entire agreement of the parties with respect to the subject matter hereof. Any Holder also benefits from various
provisions of the Purchase Agreement applicable to “Purchasers” (whether by virtue of being an “Initial Purchaser”
or successor in interest thereto) and agrees to be bound by the provisions of the Purchase Agreement applicable to it in such capacity,
including Article V (Collateral Agent) thereof that describes its relationship with the Collateral Agent and contains an indemnification
provision in Section 5.9 (Indemnification) thereof. Finally, in addition to these provisions, unless otherwise expressly provided
in any Transaction Document, “outstanding” when referring in any Transaction Document to the principal amount owing
under this Note shall mean “outstanding and unconverted.”
n) Beneficiaries; Successors
and Assigns. As provided in Section 6.3(c) (Beneficiaries; Successors and Assigns) of the Purchase Agreement, this Note shall
be binding upon the successors and assigns of the Company and shall inure solely to the benefit of the Holder, each Company Party, the
Collateral Agent, each of their Purchaser Parties and their respective successors and, if permitted, assigns; provided, that no
Company Party may assign any part of this Note, or any right, obligation, benefit, title or interest hereunder except as authorized in
the Purchase Agreement.
o) Counterparts. As
provided in clauses (e) (Counterparts) and (f) (Electronic Signatures) of Section 6.3 of the Purchase Agreement, this Note
may be executed in any number of counterparts, which may be signed and transmitted electronically.
p) Severability. As
provided in Section 6.7 (Severability) of the Purchase Agreement, any provision of this Note being held illegal, invalid or unenforceable
in any jurisdiction shall not affect any part of such provision not held illegal, invalid or unenforceable, any other provision of this
Note or any part of such provision in any other jurisdiction, so long as the economic or legal substance of the transaction contemplated
hereby is not affected in any manner adverse to any party.
q) Waiver of Jury Trial.
As provided in Section 6.16 (Waiver of Jury Trial and Certain Other Rights), each party hereto has irrevocably and unconditionally waived,
to the fullest extent permitted by applicable Regulations, trial by jury of any claim or cause of action or in any Proceeding, directly
or indirectly with respect to, or directly or indirectly based upon or arising out of, under or in connection with this Note or any other
Transaction Document or the transactions contemplated therein or related thereto (whether founded in contract, tort or any other theory).
Each party hereto (A) certifies that no other party, no Purchaser Party and no Affiliate of any of them and no attorney, agent or other
representative of any of the foregoing has represented, expressly or otherwise, that any Person would not, in the event of litigation,
seek to enforce the foregoing waiver and (B) acknowledges that it and the other parties hereto have been induced to enter into this Note
by, among other things, the mutual waivers and certifications in this Section 8(q).
[Signature
Pages Follow]
21
In witness
whereof, each of the undersigned has duly executed this Note as of the date first written above.
PROFUSA INC.
By:
/s/ Ben Hwang
Name:
Ben Hwang
Title:
CEO
Accepted and Agreed:
ASCENT PARTNERS FUND LLC
By:
/s/ Mikhail Gurevich
Name:
Mikhail Gurevich
Title:
Authorized Signatory
Address:
19505 Biscayne Blvd
Suite 2350
Ave☒nture, FL 33180
22
ANNEX A
NOTICE OF CONVERSION
The undersigned hereby elects
to convert principal under the Senior Secured Convertible Promissory Note (as the same may be amended or otherwise modified from time
to time, the “Note”; capitalized terms used but not defined herein are used as defined in the Note, including if defined
by reference to other agreements), due _________ and issued by Profusa Corp, a Delaware corporation (together with its successors
and, if permitted, assigns, the “Company”), into shares of common stock (the “Common Stock”), of
the Company according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of
a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith
such certificates and opinions as reasonably requested by the Company in accordance therewith. No fee will be charged to the Holder for
any conversion, except for such transfer taxes, if any.
By the delivery of this Notice
of Conversion the undersigned represents and warrants to the Company that its ownership of the Common Stock does not exceed the amounts
specified under Section 4 of the Note, as determined in accordance with Section 13(d) of the Exchange Act.
The undersigned agrees to
comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid
shares of Common Stock.
Conversion calculations:
Date to Effect Conversion:
Principal Amount of Note to be Converted:
Payment of Interest in Common Stock __ yes __ no
If yes, $_____ of Interest Accrued on Account of Conversion
at Issue.
Number of shares of Common Stock to be issued:
This Notice of Conversion is a Transaction Document
and, as such is subject to various provisions of the Purchase Agreement applicable to Transaction Documents, including, among others,
choice of law, forum, and waiver of jury trial.
By:
Name:
Title:
Delivery Instructions:
23
Schedule
1
CONVERSION SCHEDULE
This Conversion Schedule is part of, and reflects
conversions made under Section 4 of, the Senior Secured Convertible Promissory Note, due on April 2, 2027, and issued by Profusa Inc.,
a Delaware Corporation, in the original principal amount of $555,555.55.
Dated:
Date of Conversion
(or for first entry, Original
Issue Date)
Amount of
Conversion
Aggregate Principal Amount Remaining
Subsequent to Conversion
(or original Principal Amount)
Company
Attest
24
EX-99.1 — NON-BINDING LETTER OF INTENT, DATED MARCH 31, 2026 (AS AMENDED AND RESTATED ON APRIL 3, 2026), BY AND BETWEEN PROFUSA, INC. AND BIO INSIGHTS LLC
EX-99.1
Filename: ea028515101ex99-1.htm · Sequence: 4
Exhibit 99.1
March 31, 2026 as revised on
April 4, 2026
Bio
Insights
Attention:
[***]
This
non-binding letter of intent (this “Letter of Intent”), which amends and restates the letter of intent entered into
on March 31, 2026, is further to our recent meetings and discussions regarding a proposed strategic transaction (the “Proposed
Transaction”) pursuant to which Profusa Inc. (“Profusa”) proposes to acquire the Bio Insights
LLC (the “Company”) PanOmics assets for $30 million.
The purpose of this Letter of Intent
is to set out certain indicative terms and conditions relevant to the Proposed Transaction. Certain indicative terms of the Proposed Transaction
are set out in the non-binding term sheet attached hereto as Schedule “A” (the “Term Sheet”).
1. Confidentiality
The Parties shall treat as confidential
the existence and terms of this Letter of Intent and the Proposed Transaction. All information provided to a Party or its Representatives
by the other Party or its Representatives in connection with the Proposed Transaction shall be kept in the strictest confidence and shall
not be disclosed to any third party or used for any purpose other than evaluating and consummating the Proposed Transaction, save as required
by applicable law or regulation (the “Confidential Information”).
For the purposes of this Letter of
Intent, “Representative” means, in the case of either Party, any of its affiliates and its or their respective directors,
officers, employees, agents, advisors, counsel, consultants or financing sources. Confidential Information shall not include information
which: (i) is or becomes generally available to the public other than through a breach of this Letter of Intent; (ii) was known by the
receiving Party prior to disclosure; (iii) was obtained from a third party lawfully and without restriction; or (iv) was independently
developed without use of the Confidential Information.
2. Binding Provisions; Governing Law
Except for the provisions of this
Letter of Intent relating to Confidentiality, Notices, Termination and Survival, Other, and this Binding Provisions; Governing Law section
(collectively, the “Binding Provisions”), no legally binding obligations whatsoever shall arise between the Parties
unless and until definitive documentation relating to the Proposed Transaction is negotiated, executed and delivered by the Parties.
This Letter of Intent is not intended
to constitute an offer or a commitment, but rather an expression of mutual interest in a possible transaction.
This Letter of Intent shall be governed
by and construed in accordance with the laws of Delaware, without regard to conflicts of laws principles.
3. Notices
Any notices or communications required
or permitted hereunder shall be in writing and shall be effective when delivered by hand (or in the case of e-mail, on the business day
immediately following transmission) as follows:
If to Profusa.:
Profusa Inc.
626 Bancroft Way Suite A
Berkeley, CA 94710
Email: ben.hwang@profusa.com
If to Bio Insights:
Bio Insights
4. Termination and Survival
This Letter of Intent shall automatically
terminate, without any action by the Parties hereto, upon the earlier of (a) execution of the definitive documentation with respect to
the Proposed Transaction, (b) 5:00 p.m., Eastern time on May 1, 2026, unless the Parties mutually agree to extend such date; provided,
however, that the Confidentiality provisions shall survive the termination of this Letter of Intent for two (2) years from the effective
date of this Letter of Intent.
5. Other
Each party shall: (i) ensure that its
Representatives who are aware of the Proposed Transaction are aware of the provisions of Confidentiality provisions of this Letter of
Intent; and (ii) direct such Representatives to comply with the terms of this Letter of Intent and any further non- disclosure/confidentiality
agreement entered into between the Parties with respect to the matters herein (the “Confidentiality Agreement”).
Neither Party will make any public
announcement or other disclosure in connection with the Proposed Transaction without the prior written consent of the other Party. The
foregoing does not restrict disclosure required to comply with legal or regulatory obligations of either Party, provided that the disclosing
Party gives the other Party as much notice as reasonably practicable in the context of any deadline imposed by applicable law or regulations.
No amendment
or modification of this Letter of Intent will be binding upon any Party without the prior written consent of the other Party.
[Signature Page Follows]
2
This Letter of
Intent may be executed in two or more counterparts, each of which shall be deemed to be an original but all of which together shall constitute
one and the same instrument. The Parties shall be entitled to rely upon delivery of an executed electronic copy of this Letter of Intent,
and such executed electronic copy shall be legally effective to create a valid and binding agreement between Parties.
Kind regards,
Profusa INC.
By:
/s/ Dr. Ben Hwang
Name:
Dr. Ben Hwang
Title:
Chief Executive Officer
The undersigned hereby agrees to be bound by the foregoing.
Dated this 4th day of April, 2026
Bio
Insights LLC
By:
[***]
Name:
[***]
Title:
[***]
Signature Page – Letter of
Intent
3
SCHEDULE A
Term Sheet
for Proposed Transaction
Summary of Indicative Terms
This summary of indicative terms (“Term
Sheet”) outlines the principal terms of the Proposed Transaction. The structure of the Proposed Transaction shall be agreed
to by the Parties upon the receipt of corporate, tax, competition and regulatory advice. The terms below are indicative only and non-binding.
Terms not defined herein have the meaning given to them in the Letter of Intent.
Key Items
General Terms
Transaction
Acquisition by Profusa of Bio Insights LLC PanOmics assay for $30 million for exclusive rights to know-how and development of Molecular Dx product, including, assay design files, access to clinical samples for clinical validation of the product and all task required for LDT launch under CLIA/CAP regulations.
Securities
Shares to be issued:
460,000 shares (the “Shares”) at close (limited
to 19.99% of total shares outstanding)
Shares of a new series of preferred stock of Profusa (the
“Preferred Stock”), which shall be non-voting and convertible into 59,540,000 shares of Profusa’s common stock (the “Conversion
Shares”), with such conversion right exercisable one (1) year following the date of issuance of the Preferred Stock
The number of shares set forth above assumes a share price of $0.50.
The actual number of shares necessary to reflect the $30,000,000 purchase price will be calculated based the closing transaction price
reported by Nasdaq on the trading day preceding Closing.
The Shares and the Conversion Shares are hereafter referred
to in the aggregate as the “Closing Shares”.
Conversion Shares will have registration rights and will be subject
to a lockup agreement that will span seven (7) years and will have annual releases of one seventh of the Conversion Shares each year.
In addition, the lock-up agreement will have a carve out allowing the Company to sell such amount of Conversion Shares that may be necessary
to allow the Company to fund tax liability related to the transaction.
Consideration
Total Consideration of USD $30,000,000 to be satisfied through the issuance of the Securities.
4
Employment / Severance / Transition
All existing employment and/or severance arrangements for Profusa’s CEO and CFO to be reviewed by BioInsights prior to signing the transaction documentation. The Parties will mutually agree to any changes or amendments to ensure the proper retention incentives are in place for a period of two years.
Equity Financing
The Profusa will make best efforts to conclude a financing
contemporaneous with the Closing or within thirty days following the Closing pursuant to which the Profusa will raise $10,000,000 in
additional equity financing.
PanOmics Operating Cash
Profusa shall allocate a minimum of 15% of the net proceeds
of the above equity financing and future financings, up to $2 million in aggregate for consulting work and reagent costs related to the
PanOmics assay’s analytical and clinical validation and capital equipment needs of the project.
Management Shares
In connection with the closing of the Transaction, the Company shall issue to management 12% of the number of fully diluted shares immediately following the transaction and fundraising for the retention of CEO/CFO. The quantity of Management Shares will be reduced by the number of RSUs or Options, if any, issued to members of management after the date of this Letter of Intent and prior to announcement of the Transaction.
Royalty Payments
Bio Insights to receive 3% of Net Revenue in royalty payments made annually after full year financial statements are audited.
Samples
BioInsights will provide 2 cohorts of samples for CV studies:
Cohort 1, with [***] samples, will be available
to ship to Profusa’s chosen facility within 5 business days of the close of the transaction. In addition, BioInsights will
provide documentation from [***] confirming his consent to allow the use of these samples for a CV study within 5 days of the
close of the transaction.
Cohort 2, with [***] samples, will be provided to
Profusa after an MTA agreement is signed between [***] and BioInsights within 30 days of the close of the transaction. BioInsights
affirms that these samples are in possession of [***] at the present time.
Both parties agree that the 30-day deadline can be extended
by 2 additional weeks if needed.
Conditions to Closing (see draft purchase agreement)
Conditions to Profusa’s Obligations. The obligation
of Profusa to consummate the transactions contemplated hereby is subject to the satisfaction (or waiver by Profusa in its sole discretion)
of each of the following conditions on or prior to the Closing Date:
5
(a) each of the
representations and warranties of the Company contained in the Asset Purchase Agreement (the “Agreement”) shall be true and
correct in all respects (without giving effect to any “materiality” or “Material Adverse Effect” qualification) as
of the date hereof and as of the Closing Date as though made on and as of the Closing Date;
(b) the Company
shall have performed and complied with, in all material respects, all covenants and agreements required to be performed or complied with
by the Company under the Agreement on or prior to the Closing Date;
(c) no
Material Adverse Effect shall have occurred since the date hereof;
(d) Profusa shall
have received all deliverables required under the Agreement;
(e) all governmental
and third-party consents and approvals required in connection with the consummation of the transactions contemplated hereby shall have
been obtained;
(f) no action, suit,
proceeding, or investigation shall be pending or threatened before any Governmental Authority that seeks to enjoin, prohibit, or otherwise
challenge the consummation of the transactions contemplated hereby;
(g) Profusa shall
have completed, to its satisfaction in its sole discretion, its legal, financial, tax, and commercial due diligence with respect to the
Purchased Assets, the Know-How, and the PanOmics Assay;
(h) the Samples
shall have been physically delivered to Profusa at Profusa’s designated facility in accordance with the Agreement; and
(i) Profusa shall
have received a legal opinion from the Company’s counsel, in form and substance reasonably satisfactory to Profusa.
Board Representation
Bio Insights shall have the right to nominate one independent Board member for consideration by stockholders at the next regularly scheduled annual meeting of stockholders of Profusa. Such nominee shall be required to be presented to stockholders unless he/she is approved by a majority of the members of the Nominating and Corporate Governance Committee and a majority of the members of the Profusa Board of Directors. It is contemplated that such nominee would replace a Board member whose term is expiring. Profusa shall not be required to enlarge the Board to accommodate the new nominee.
Nasdaq Approval
Profusa shall hold a meeting of its shareholders (the “Shareholder Meeting”) for the purpose of voting upon the issuance of the Closing Shares prior to June 30, 2026. Profusa shall use its reasonable best efforts to solicit from its shareholders proxies in favor of the approval of the issuance of the Closing Shares at the Shareholder Meeting.
6
Registration Rights
the Company shall agree to provide customary registration rights to Bio Insights Shareholders with respect to the resale registration of the Closing Shares, including demand rights, piggyback rights, expense reimbursement and indemnification provisions.
Due Diligence
Completion is subject to satisfactory completion of customary legal, financial, tax and commercial due diligence from both Parties, including through the conduct of oral due diligence sessions, at which management of the Company, its auditors and legal counsel shall participate.
Definitive Documentation
Completion is subject to execution of mutually satisfactory Agreement containing customary representations, warranties, covenants and conditions.
Term
The parties agree to use their good faith, commercially reasonable efforts to negotiate and execute a mutually acceptable definitive agreement reflecting the terms set forth in this Letter within thirty (30) days from the date hereof (the “Execution Deadline”); provided that the Execution Deadline shall be automatically extended for an additional thirty (30) days if the parties are actively negotiating in good faith and Profusa is reasonably satisfied with the progress toward execution; each party shall devote adequate resources and cause its representatives to respond promptly to requests and drafts to meet the applicable deadline, and if a definitive agreement has not been executed by such date, Profusa may, in its sole discretion, terminate this Letter and any exclusivity obligations hereunder without liability, except for any provisions expressly stated to survive, and this provision shall be binding and enforceable notwithstanding any other provision of this Letter.
Exclusivity
For the term of this Letter (the “Exclusivity Period”), the Company and its affiliates and representatives shall not, directly or indirectly, solicit, initiate, or encourage any inquiry or proposal, engage in or continue discussions or negotiations, or provide any non-public information to any third party relating to any acquisition, sale of equity or assets, or similar transaction; the Company shall immediately terminate any existing discussions or negotiations and promptly (within 24 hours) notify Profusa of any unsolicited inquiries or proposals, and the parties acknowledge that any breach would cause irreparable harm for which monetary damages would be inadequate, entitling Profusa to injunctive relief and reimbursement of reasonable out-of-pocket expenses, and this provision shall be binding and enforceable notwithstanding any other provision of this Letter.
7
EX-99.2 — PRESS RELEASE
EX-99.2
Filename: ea028515101ex99-2.htm · Sequence: 5
Exhibit 99.2
Profusa Expands into Multi-Billion Dollar Precision
Diagnostics Market with $30M Letter of Intent for a PanOmics Platform
Company secures scalable multi-omics diagnostics
platform and launches Mayo Clinic partnership adding to Lumee real-time biochemistry monitoring platform to advance pancreatic cancer
applications
BERKELEY, CA, April 06, 2026 (GLOBE NEWSWIRE) -- Profusa, Inc. (“Profusa” or the “Company”) (Nasdaq: PFSA), a commercial stage digital health company
pioneering the next generation of technology platform enabling the continuous monitoring of an individual’s biochemistry, today
announced a strategic expansion into molecular diagnostics through a Letter of Intent to acquire the PanOmics™ multi-omics diagnostics
platform from BioInsights LLC (“BioInsights”). The Company believes this acquisition, adding to its core real-time biochemistry
monitoring platform, will help to position Profusa at the intersection of biosensing, diagnostics, and precision medicine, establishing
a foundation for scalable multi-product diagnostics and monitoring franchise.
“This is a pivotal step in the evolution
of Profusa,” said Dr. Ben Hwang, Profusa Chairman and Chief Executive Officer. “The combination of the PanOmics platform and
our collaboration with Mayo Clinic positions us to build a differentiated, scalable presence in precision diagnostics and surgical monitoring.
The entry into pancreatic cancer is instrumental in our establishing a platform capable of supporting multiple indications and long-term
growth. With access to clinical samples, a clear validation pathway, and our
previously announced collaboration with the Mayo Clinic, one of the world’s leading medical institutions, we believe we are
uniquely positioned to accelerate development, drive clinical adoption, and unlock meaningful near-term high-growth commercial value.
Additionally, this transaction will add $30 million of shareholder equity to our balance sheet.”
Transaction Highlights
Under the terms of the Letter of Intent:
● Profusa
would acquire exclusive rights to the PanOmics platform and related know-how
● Total
consideration of approximately $30 million, to be paid in equity securities
● BioInsights
to provide access to a specified number of samples for validation
● BioInsights
to receive a 3% royalty on net revenue
● Profusa
intends to pursue additional financing to support development and scale
● BioInsights
will have the right to nominate one independent Board member for consideration by stockholders to replace an outgoing Board member
The proposed transaction remains subject to completion
of due diligence, shareholder approval, and customary closing conditions. For additional information regarding the Letter of Intent, please
refer to our Current Report on Form 8-K filed today.
Accelerated Pathway from Platform to Commercialization
As part of the proposed BioInsights transaction,
Profusa would gain exclusive access to clinically annotated samples for validation, and established assay design and infrastructure,
which it believes would create a defined pathway to rapidly validated lab developed test (LDT) commercialization. These assets are expected
to enable a capital-efficient and accelerated path from development to revenue generation.
The integration of the PanOmics platform with
Profusa’s biosensing technologies then creates a unique opportunity to develop:
● Multi-indication diagnostic assays
● Real-time physiological monitoring solutions
● Data-driven clinical decision tools
Profusa believes this combined approach can support
expansion into multiple high-growth markets and establish a scalable, recurring-revenue diagnostics and monitoring platform. This
platform will be integrated into the Company’s previously
announced, emerging vertical to address issues associated with pancreatic cancer. The Company is collaborating to leverage its Lumee®
oxygen platform to address critical intraoperative and postoperative monitoring challenges in complex pancreatic procedures. Pancreatic
cancer remains one of the most challenging surgical oncology areas, with more than 13,000 resections performed annually in the United
States, representing an estimated $26 million annual revenue opportunity.
About Profusa
Based in Berkeley, CA, Profusa is a commercial
stage digital health company led by visionary scientific founders, an experienced management team and a world-class board of
directors in the development of a new generation of tissue-integrated sensors to detect and continuously transmit actionable,
medical-grade data for personal and medical use. With its long-lasting, injectable and affordable biosensors and its intelligent
data platform, Profusa aims to provide people with a personalized biochemical signature rooted in data that clinicians can trust and
rely on. “LUMEE”, “PROFUSA” and the PROFUSA logo are registered trademarks of Profusa, Inc. in the United
States, Canada, European Union, China, Japan, South Korea and Australia.
For more information, visit https://profusa.com.
Special Note Regarding Forward-Looking Statements
Certain statements in this press release may be
considered “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States
Private Securities Litigation Reform Act of 1995. Forward-looking statements generally relate to future events or future financial or
operating performance of Profusa. In some cases, you can identify forward-looking statements by terminology such as “anticipate,”
“believe,” “continue,” “could,” “estimate,” “expect,” “forecast,”
“future,” “intend,” “may,” “might,” “plan,” “possible,” “potential,”
“predict,” “project,” “propose,” “seek,” “should,” “strive,” “will,”
or “would” or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are
subject to risks, uncertainties, and other factors which may be beyond the control of Profusa and could cause actual results to differ
materially from those expressed or implied by such forward-looking statements including, without limitation, risks related to the Company’s
planned European and U.S. product launches, the risk that such product launches may not result in revenue at the levels anticipated, the
risk that customer demand may be less than expected, and risks relating to the Company’s withdrawal of the Registration Statement
and conducting a smaller offering of its securities. These forward-looking statements are based upon estimates and assumptions that, while
considered reasonable by Profusa and its management, are inherently uncertain. Profusa cautions you that these statements are based on
a combination of facts and factors currently known and projections of the future, which are inherently uncertain. There are risks and
uncertainties described more fully in the Company’s public filings made by Profusa from time to time with the SEC. These filings may identify
and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained
in the forward-looking statements. Profusa cannot assure you that the forward-looking statements in this communication will prove to be
accurate.
Contacts
Investor and Media Contacts
email: info@coreir.com
phone: 1 (212) 655-0924
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0001859807
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DE
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626 Bancroft Way
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- Definition
Area code of city
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No definition available.
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Balance Type:
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- Definition
Cover page.
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No definition available.
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For the EDGAR submission types of Form 8-K: the date of the report, the date of the earliest event reported; for the EDGAR submission types of Form N-1A: the filing date; for all other submission types: the end of the reporting or transition period. The format of the date is YYYY-MM-DD.
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No definition available.
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- Definition
The type of document being provided (such as 10-K, 10-Q, 485BPOS, etc). The document type is limited to the same value as the supporting SEC submission type, or the word 'Other'.
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No definition available.
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Data Type:
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- Definition
Address Line 1 such as Attn, Building Name, Street Name
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No definition available.
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- Definition
Address Line 2 such as Street or Suite number
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No definition available.
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Name:
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Balance Type:
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- Definition
Name of the City or Town
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No definition available.
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- Definition
Code for the postal or zip code
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No definition available.
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- Definition
Name of the state or province.
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No definition available.
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Name:
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Data Type:
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- Definition
A unique 10-digit SEC-issued value to identify entities that have filed disclosures with the SEC. It is commonly abbreviated as CIK.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Indicate if registrant meets the emerging growth company criteria.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
Indicate if an emerging growth company has elected not to use the extended transition period for complying with any new or revised financial accounting standards.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 7A
-Section B
-Subsection 2
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- Definition
Commission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
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No definition available.
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Data Type:
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Balance Type:
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Period Type:
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- Definition
Two-character EDGAR code representing the state or country of incorporation.
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No definition available.
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Namespace Prefix:
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Data Type:
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- Definition
The exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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- Definition
The Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
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Period Type:
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- Definition
Local phone number for entity.
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No definition available.
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Name:
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Namespace Prefix:
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Balance Type:
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
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Data Type:
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- Definition
Title of a 12(b) registered security.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
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- Definition
Name of the Exchange on which a security is registered.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
-Subsection 12
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- Definition
Trading symbol of an instrument as listed on an exchange.
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No definition available.
+ Details
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- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
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Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
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