Form 8-K
8-K — Brag House Holdings, Inc.
Accession: 0001213900-26-053894
Filed: 2026-05-08
Period: 2026-05-04
CIK: 0001903595
SIC: 6199 (FINANCE SERVICES)
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: Financial Statements and Exhibits
Documents
8-K — ea0289773-8k_braghouse.htm (Primary)
EX-4.1 — FORM OF SENIOR SECURED CONVERTIBLE NOTES, DATED MAY 4, 2026, ISSUED BY BRAG HOUSE HOLDINGS, INC. TO THE PURCHASERS (ea028977301ex4-1.htm)
EX-10.1 — SECURITIES PURCHASE AGREEMENT, DATED MAY 4, 2026, BY AND BETWEEN BRAG HOUSE HOLDINGS, INC. AND THE PURCHASERS PARTY THERETO (ea028977301ex10-1.htm)
EX-10.2 — REGISTRATION RIGHTS AGREEMENT, DATED MAY 4, 2026, BY AND BETWEEN BRAG HOUSE HOLDINGS, INC. AND THE PURCHASERS PARTY THERETO (ea028977301ex10-2.htm)
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):
May 4, 2026
Brag House Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware
001-42525
87-4032622
(State or other jurisdiction
of incorporation)
(Commission File Number)
(IRS Employer
Identification No.)
45 Park Street,
Montclair, NJ 07042
(Address of principal executive offices)
Registrant’s telephone number, including
area code: (413) 398-2845
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, $0.0001 par value
TBH
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.
Securities Purchase Agreement
On May 4, 2026, Brag House Holdings, Inc., a Delaware
corporation (the “Company”), entered into a Purchase Agreement (the “Purchase Agreement”) with certain institutional
investors (each, a “Purchaser” and collectively, the “Purchasers”), pursuant to which the Company agreed to issue
and sell to the Purchasers, and the Purchasers agreed to purchase from the Company, Senior Secured Convertible Notes, each dated May 4,
2026 (collectively, the “Notes”), in an aggregate original principal amount of $2,500,000 (the “Offering”). The
aggregate subscription amount funded by the Purchasers was $1,875,000, reflecting a 25% original issue discount. The Notes were offered
and sold in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities
Act”), and Rule 506 promulgated thereunder.
In connection with the Offering, the Company will
issue to the Purchasers an aggregate of 3,000,000 shares of the Company’s Common Stock, par value $0.0001 per share (the “Common
Stock”) as a commitment fee (the “Commitment Shares”), allocated pro rata based on each Purchaser’s subscription
amount relative to the aggregate subscription amounts of all Purchasers. Each Purchaser will receive 1,000,000 Commitment Shares.
The Purchase Agreement contains customary representations, warranties,
and covenants of the Company and the Purchasers. The Company agreed not to undertake a reverse or forward stock split or reclassification
of Common Stock without the prior written consent of the holders of at least a majority of the aggregate principal amount of the Notes
issued for a period of one year following the Effective Date.
The net proceeds from the Offering was deposited by
the Company with House of Doge, Inc. (“House of Doge”) in anticipation of the closing of the Company’s merger with House
of Doge.
Convertible Secured Notes
Pursuant to the Purchase Agreement, the Company will
issue the Notes to the Purchasers in an aggregate original principal amount of $2,500,000, with each Purchaser receiving a Note in the
original principal amount of $833,333.34 (subscription amount of $625,000 each).
The material terms of the Notes are as follows:
Maturity Date. The Notes mature on February
4, 2027.
Interest Rate. The Notes bear interest at a
rate of 12.0% per annum, computed on the basis of a 360-day year and twelve 30-day months. The Company may elect to pay interest in cash
quarterly in arrears or to accrue interest (compounded quarterly) and add it to the outstanding principal balance. Upon the occurrence
and during the continuance of an Event of Default (as defined in the Notes), the interest rate increases to 17.5% per annum.
Original Issue Discount. Each Note was
issued at an original issue discount of 25% (i.e., the issue price of each Note is 75% of its original principal amount).
Conversion. The Notes are convertible at
the option of the holder at any time after the issuance date into shares of Common Stock, at a conversion price of $0.7101 per share,
subject to adjustment.
Beneficial Ownership Limitation. Each Note
contains a beneficial ownership limitation providing that the holder may not convert the Note to the extent that such conversion would
cause the holder, together with its Attribution Parties (as defined in the Notes), to beneficially own in excess of 4.99% of the number
of shares of Common Stock outstanding immediately after giving effect to such issuance.
1
Nasdaq Exchange Cap. Prior to the receipt of stockholder approval in accordance
with Nasdaq Listing Rule 5635, the Company shall not issue shares of Common Stock upon conversion of the Notes to the extent that the
aggregate number of shares issued or issuable to a holder under the Notes and Commitment Shares would exceed such holder’s pro rata
portion of 19.99% of the total number of shares of Common Stock outstanding as of the date of the Purchase Agreement.
Prepayment. The Company may prepay all
or any portion of the outstanding principal at any time prior to the Maturity Date without penalty, premium, additional interest, or fees,
subject to providing the holder with at least ten (10) Business Days’ prior written notice, during which period the holder may elect
to convert.
Cash Redemption. Beginning on the date
that is six (6) months after the Closing Date, the holder may demand repayment in cash of all or any portion of the outstanding principal
plus all accrued and unpaid interest thereon by delivering a written notice to the Company, and the Company shall pay such amount within
five (5) Business Days.
Security. Pursuant to the Transaction Documents, the Company is obligated
to deliver a Pledge Agreement granting to the collateral agent for the benefit of the holders a second priority perfected security interest
in substantially all of the assets of the Company and its subsidiaries. The Pledge Agreement is a post-closing deliverable, the delivery
of which is subject to YA II PN LTD.’s (“Yorkville”) consent. Such security interest will be contractually subordinate
to the existing indebtedness owed to Yorkville but senior to all other existing and future indebtedness and shall automatically become
a first priority security interest upon the full repayment of all obligations owed to Yorkville.
Guaranty. Pursuant to the Notes, each existing
subsidiary of the Company is required to execute and deliver a Global Guaranty Agreement guaranteeing the full, prompt and unconditional
payment and performance of all obligations of the Company under the Transaction Documents. The Global Guaranty Agreement is a post-closing
deliverable, the delivery of which is subject to Yorkville’s consent.
Ranking. All payments due under the Notes
rank pari passu with all other Notes and are senior to all other indebtedness of the Company and its subsidiaries, other than existing
indebtedness owed to Yorkville.
Events of Default. The Notes contain customary
events of default, including, among others, failure to pay principal or interest when due, breach of covenants, cross-defaults, bankruptcy
events, and failure to maintain trading market listing.
Registration Rights Agreement
In connection with the Offering, on May 4, 2026,
the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with the Purchasers. Pursuant
to the Registration Rights Agreement, the Company agreed to file a registration statement (the “Registration Statement”) with
the Commission covering the resale of all Registrable Instruments, which include shares of Common Stock issuable upon conversion of the
Notes and the Commitment Shares.
The Company agreed to file the initial Registration Statement on or
prior to the earlier of (a) five (5) trading days following the completion of audited financials for House of Doge through December 31,
2025 and (b) June 30, 2026. The Company shall use its best efforts to complete the audit of House of Doge’s financials on or before
June 15, 2026.
2
The foregoing descriptions of the Purchase Agreement,
the Form of Senior Secured Convertible Notes, and the Registration Rights Agreement are qualified in their entirety by reference to the
full text of such agreements, copies of which are filed as exhibits to this Current Report on Form 8-K and are incorporated herein by
reference. The Pledge Agreement and Global Guaranty Agreement are post-closing deliverables that have not yet been executed and delivered
and are not filed as exhibits to this Current Report on Form 8-K.
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 above with
respect to the Notes is incorporated herein by reference. The issuance of the Notes in the aggregate original principal amount of $2,500,000
constitutes the creation of a direct financial obligation of the Company. The Notes bear interest at 12.0% per annum, mature on February
4, 2027, are convertible into shares of Common Stock at a conversion price of $0.7101 per share, and are secured by a second priority
perfected security interest in substantially all assets of the Company and its subsidiaries.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth in Item 1.01 above is incorporated
herein by reference. On May 4, 2026, the Company will issue the Notes and the Commitment Shares to the Purchasers in a private placement
exempt from registration under the Securities Act pursuant to Section 4(a)(2) thereof and Rule 506 promulgated thereunder. Each Purchaser
represented that it is an “accredited investor” as defined in Rule 501(a) under the Securities Act. The Commitment Shares
will consist of an aggregate of 3,000,000 shares of Common Stock to be issued to the Purchasers as a commitment fee. The Notes are convertible
into shares of Common Stock at a conversion price of $0.7101 per share, subject to adjustment, and are subject to beneficial ownership
limitations.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No.
Description
4.1
Form of Senior Secured Convertible Notes, dated May 4, 2026, by and between Brag House Holdings, Inc. and the Purchasers party thereto
10.1
Securities Purchase Agreement, dated May 4, 2026, by and between Brag House Holdings, Inc. and the Purchasers party thereto
10.2
Registration Rights Agreement, dated May 4, 2026, by and between Brag House Holdings, Inc. and the Purchasers party thereto
104
Cover Page Interactive Data File (embedded with the Inline XBRL document).
3
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: May 8, 2026
BRAG HOUSE HOLDINGS, INC.
By:
/s/ Lavell Juan Malloy, II
Name:
Lavell Juan Malloy, II
Title:
Chief Executive Officer
4
EX-4.1 — FORM OF SENIOR SECURED CONVERTIBLE NOTES, DATED MAY 4, 2026, ISSUED BY BRAG HOUSE HOLDINGS, INC. TO THE PURCHASERS
EX-4.1
Filename: ea028977301ex4-1.htm · Sequence: 2
Exhibit 4.1
NEITHER THIS INSTRUMENT NOR THE INSTRUMENTS
INTO WHICH THIS INSTRUMENT IS CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION
OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS. THIS INSTRUMENT AND THE INSTRUMENTS ISSUABLE UPON CONVERSION OF THIS INSTRUMENT MAY BE PLEDGED
IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED
INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH INSTRUMENTS. ANY TRANSFEREE OF THIS NOTE
SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iii) AND 17(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS
NOTE AND, ACCORDINGLY, THE INSTRUMENTS ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNT SET FORTH ON THE FACE HEREOF PURSUANT
TO SECTION 3(c)(iii) OF THIS NOTE.
THIS NOTE HAS BEEN ISSUED WITH AN ORIGINAL
ISSUE DISCOUNT (“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), LAVELL JUAN MALLOY II, A REPRESENTATIVE OF THE
COMPANY HEREOF 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). LAVELL JUAN MALLOY II MAY BE REACHED AT TELEPHONE NUMBER [***].
Brag
House Holdings, Inc.
SENIOR
SECURED CONVERTIBLE NOTE
Issuance Date: May 4, 2026
Original Principal Amount: U.S. $833,333.34
FOR VALUE RECEIVED, Brag
House Holdings, Inc., a Delaware corporation (the “Company”), hereby promises to pay to [***] or registered assigns
(the “Holder”) in cash and/or in shares of Common Stock the amount set forth above as the Original Principal Amount
(as reduced pursuant to the terms hereof pursuant to redemption, conversion or otherwise, the “Principal”) when due,
whether upon the Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance with the terms hereof)
and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate at any time from the
date set out above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon
the Maturity Date, acceleration, conversion, redemption or otherwise (in each case in accordance with the terms hereof). To secure the
prompt payment and performance of all obligations of the Company under this Note and the other Transaction Documents, the Company has
granted to the collateral agent for the benefit of the Holder and the holders of the Other Notes a second priority perfected security
interest in the Collateral (as defined in the Security Agreement) pursuant to the Security Agreement, which security interest is contractually
subordinate to the existing indebtedness owed to YA II PN LTD. and/or its affiliates (“Yorkville”) pursuant to the
Yorkville Documents (as defined in Section 31); upon the full repayment of all obligations owed to Yorkville under the Yorkville Documents,
such security interest shall automatically become a first priority security interest without the need for any amendment, consent, or further
documentation. This Senior Secured Convertible Note (including all Senior Secured Convertible Notes issued in exchange, transfer or replacement
hereof, this “Note”) is one of an issue of Senior Secured Convertible Notes issued pursuant to the Purchase Agreement
on the Closing Date (collectively, the “Notes” and such other Senior Secured Convertible Notes, the “Other
Notes”). Certain capitalized terms used herein are defined in Section 31.
(1) ORIGINAL
ISSUE DISCOUNT; PAYMENTS OF PRINCIPAL; PREPAYMENT. The Company acknowledges and agrees that this Note was issued at an original issue
discount of 25% (i.e., the issue price of this Note is 75% of the Original Principal Amount stated on the face hereof, representing OID
equal to 25% of such Original Principal Amount). On the Maturity Date, if any portion of this Note remains outstanding, the Company shall
pay to the Holder an amount in cash representing all outstanding Principal, any accrued and unpaid Interest and any accrued and unpaid
Late Charges (as defined in Section 23(b)) on such Principal and Interest. The “Maturity Date” shall be February 1,
2027, as may be extended at the option of the Holder (x) in the event that, and for so long as, an Event of Default (as defined in Section
4(a)) shall have occurred and be continuing on the Maturity Date (as may be extended pursuant to this Section 1) or any event shall have
occurred and be continuing on the Maturity Date (as may be extended pursuant to this Section 1) that with the passage of time and the
failure to cure would result in an Event of Default and/or (y) through the date that is ten (10) Business Days after the consummation
of a Change of Control in the event that a Change of Control is publicly announced or a Change of Control Notice (as defined in Section
5(b)) is delivered prior to the Maturity Date. The Company may, at its option, prepay all or any portion of the outstanding Principal
at any time prior to the Maturity Date without penalty, premium, additional interest, or fees, provided that (i) the Company shall provide
the Holder with at least ten (10) Business Days’ prior written notice of any such prepayment, during which period the Holder shall
have the right to elect to convert all or any portion of the Principal and accrued Interest subject to such prepayment into shares of
Common Stock pursuant to Section 3, and (ii) any such prepayment shall be accompanied by payment of all accrued and unpaid Interest on
the Principal amount being prepaid through the date of such prepayment. In addition, beginning on the date that is six (6) months after
the Closing Date, the Holder may, at its sole discretion and for any reason or no reason, demand repayment in cash of all or any portion
of the outstanding Principal plus all accrued and unpaid Interest thereon by delivering written notice to the Company (a “Cash
Redemption Notice”), and the Company shall pay such amount to the Holder in cash by wire transfer of immediately available funds
within five (5) Business Days after the Company’s receipt of such Cash Redemption Notice.
(2) INTEREST.
Interest on this Note shall commence accruing on the Issuance Date at the Interest Rate and shall be computed on the basis of a 360-day
year and twelve 30-day months. The Company shall have the right to elect, no later than five (5) Business Days prior to the last day of
each Calendar Quarter, the manner in which Interest accrued during such Calendar Quarter shall be paid by delivering written notice to
the Holder (an “Interest Election Notice”), as follows: (a) Interest shall be paid in cash in arrears within five (5)
Business Days following the end of such Calendar Quarter by wire transfer of immediately available funds pursuant to wire instructions
provided by the Holder in writing to the Company, or (b) Interest shall compound quarterly and be added to the outstanding Principal balance
of this Note, to be paid in cash at the earlier of (i) the Maturity Date or (ii) the date of full repayment of this Note. If the Company
fails to deliver a timely Interest Election Notice with respect to any Calendar Quarter, the Company shall be deemed to have elected option
(b) for such Calendar Quarter. Any Interest added to Principal pursuant to option (b) shall thereafter accrue Interest at the Interest
Rate. For the avoidance of doubt, all outstanding accrued and unpaid Interest shall also be included in the Conversion Amount on each
Conversion Date and upon any redemption hereunder occurring prior to the Maturity Date, including, without limitation, upon a Bankruptcy
Event of Default redemption. From and after the occurrence and during the continuance of an Event of Default, the Interest Rate shall
be increased to seventeen and one-half percent (17.5%) per annum (to the extent Holder has not elected acceleration pursuant to Section
4(c) hereof). In the event that such Event of Default is subsequently cured and no other Event of Default then exists, the adjustment
referred to in the preceding sentence shall cease to be effective as of the date of such cure; provided, that the Interest as calculated
and unpaid at such increased rate during the continuance of such Event of Default shall continue to apply to the extent relating to the
days after the occurrence of such Event of Default through and including the date of cure of such Event of Default; provided, further,
that for the purpose of this Section 2, such Event of Default shall not be deemed cured unless and until any accrued and unpaid Interest
shall be paid to the Holder, including, without limitation, Interest accrued at the increased rate of seventeen and one-half percent (17.5%)
per annum.
- 2 -
(3) CONVERSION
OF NOTES. At any time or times after the Issuance Date, this Note shall be convertible into shares of Common Stock, on the terms and
conditions set forth in this Section 3.
(a) Conversion
Right. Subject to the provisions of Section 3(d), at any time or times on or after the Issuance Date, the Holder shall be entitled
to convert all or any portion of the outstanding and unpaid Conversion Amount into fully paid and nonassessable shares of Common Stock
in accordance with Section 3(c), at the Conversion Rate (as defined below). The Company shall not issue any fraction of a share of Common
Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round
such fraction of a share of Common Stock up to the nearest whole share. The Company shall pay any and all transfer, stamp and similar
taxes that may be payable with respect to the issuance and delivery of Common Stock upon conversion of any Conversion Amount.
(b) Conversion
Rate. The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall be determined
by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).
(i) “Conversion
Amount” means the sum of (A) the portion of the Principal to be converted, redeemed or otherwise with respect to which this
determination is being made, (B) accrued and unpaid Interest, if any, with respect to such Principal and (C) accrued and unpaid Late Charges,
if any, with respect to such Principal and Interest.
(ii) “Conversion
Price” means, as of any Conversion Date or other date of determination, $0.7101, subject to adjustment as provided herein.
(c) Mechanics
of Conversion.
(i) Optional
Conversion. To convert any Conversion Amount into shares of Common Stock on any date (a “Conversion Date”), the
Holder shall (A) transmit by electronic mail (or otherwise deliver), for delivery on or prior to 11:59 p.m., New York time, on such date,
a copy of an executed notice of conversion in the form attached hereto as Exhibit I (a “Conversion Notice”)
to the Company and (B) if required by Section 3(c)(iii), but without delaying the Company’s requirement to deliver shares of Common
Stock on the applicable Share Delivery Date (as defined below), surrender this Note to a common carrier for delivery to the Company as
soon as practicable on or following such date (or an indemnification undertaking with respect to this Note in the case of its loss, theft,
destruction or mutilation in compliance with the procedures set forth in Section 17(b)). No ink-original Conversion Notice shall be required,
nor shall any medallion guarantee (or other type of guarantee or notarization) of any Conversion Notice be required. On or before the
first (1st) Trading Day following the date of delivery of a Conversion Notice, the Company shall transmit by electronic mail
a confirmation of receipt of such Conversion Notice to the Holder and the Company’s transfer agent (the “Transfer Agent”).
On or before the earlier of (i) the first (1st) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period,
in each case, following the date on which the Holder has delivered the applicable Conversion Notice to the Company (a “Share
Delivery Date”), the Company shall (x) provided that the Transfer Agent is participating in the Depository Trust Company (“DTC”)
Fast Automated Securities Transfer Program and (A) the applicable Conversion Shares are subject
to an effective resale registration statement in favor of the Holder or (B) if converted at a time when Rule 144 would be available for
resale of the applicable Conversion Shares by the Holder, credit such aggregate number of Conversion Shares to which the Holder
is entitled pursuant to such conversion to the Holder’s or its designee’s balance account with DTC through its Deposit / Withdrawal
At Custodian system, or (y) if (A) the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or
(B) the applicable Conversion Shares are not subject to an effective resale registration statement in favor of the Holder and, if converted
at a time when Rule 144 would not be available for resale of the applicable Conversion Shares by the Holder, issue and deliver
to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, for the number
of shares of Common Stock to which the Holder shall be entitled. If this Note is physically surrendered for conversion as required by
Section 3(c)(iii) and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted,
then the Company shall as soon as practicable and in no event later than two (2) Business Days after delivery of this Note and at its
own expense, issue and deliver to the Holder a new Note (in accordance with Section 17(d)) representing the outstanding Principal not
converted. The Person or Persons entitled to receive the shares of Common Stock issuable upon a conversion of this Note shall be treated
for all purposes as the record holder or holders of such shares of Common Stock on the applicable Conversion Date, irrespective of the
date such Conversion Shares are credited to the Holder’s account with DTC or the date of delivery of the certificates evidencing
such Conversion Shares, as the case may be. The Company’s obligations to issue and deliver shares of Common Stock in accordance
with the terms and subject to the conditions hereof are absolute and unconditional, irrespective of any action or inaction by the Holder
to enforce the same, 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. While any Notes are outstanding, the Company
shall use a transfer agent that participates in the DTC Fast Automated Securities Transfer Program.
- 3 -
(ii) Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or no reason, on or prior to the applicable Share Delivery Date
to issue and deliver a certificate to the Holder, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer
Program or if converted, at a time when the applicable Conversion Shares are not subject
to an effective resale registration statement in favor of the Holder and Rule 144 would not be available for resale of the applicable
Conversion Shares by the Holder, or credit the Holder’s balance account with DTC, if the Transfer Agent is participating in the
DTC Fast Automated Securities Transfer Program and (a) the applicable Conversion Shares are
subject to an effective resale registration statement in favor of the Holder or (b) if converted at a time when Rule 144 would be available
for resale of the applicable Conversion Shares by the Holder, for the number of shares of
Common Stock to which the Holder is entitled upon the Holder’s conversion of any Conversion Amount (a “Conversion Failure”),
then (A) the Company shall pay cash to the Holder for each Trading Day after the applicable Share Delivery Date of such Conversion Failure
in an amount equal to, for each US$1,000 of Principal amount of this Note subject to such conversion (based on the VWAP of the Common
Stock on the date of the applicable Conversion Notice), US$10 per Trading Day for the first and second Trading Day after such Share Delivery
Date, and US$20 per Trading Day for each Trading Day thereafter, in each case continuing until such Conversion Shares are delivered to
the Holder or the Holder rescinds such conversion, and (B) the Holder, upon written notice to the Company, may rescind its Conversion
Notice with respect to, and retain or have returned, as the case may be, any portion of this Note that has not been converted pursuant
to such Conversion Notice; provided that the rescission of a Conversion Notice shall not affect the Company’s obligations
to make any payments which have accrued prior to the date of such notice pursuant to this Section 3(c)(ii) or otherwise. In addition to
the foregoing, if the Company shall fail on or prior to the applicable Share Delivery Date to issue and deliver a certificate to the Holder
if (A) the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or
(B) the applicable Conversion Shares are not subject to an effective resale registration statement in favor of the Holder and, if converted
at a time when Rule 144 would not be available for resale of the applicable Conversion Shares by the Holder, or credit the Holder’s
balance account with DTC if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program and
(A) the applicable Conversion Shares are subject to an effective resale registration statement in favor of the Holder or (B) if converted
at a time when Rule 144 would be available for resale of the applicable Conversion Shares by the Holder, for the number of shares
of Common Stock to which the Holder is entitled upon the Holder’s conversion of any Conversion Amount or on any date of the Company’s
obligation to deliver shares of Common Stock as contemplated pursuant to clause (y) below, and if on or after such Trading Day the Holder
purchases (in an open market transaction or otherwise) Common Stock to deliver in satisfaction of a sale by the Holder of Common Stock
issuable upon such conversion that the Holder anticipated receiving from the Company (a “Buy-In”), then the Company
shall, within two (2) Trading Days after the Holder’s request and in the Holder’s discretion, either (x) pay cash to the Holder
in an amount equal to the Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any)
for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to
issue and deliver such certificate or credit the Holder’s balance account with DTC for the shares of Common Stock to which the Holder
is entitled upon the Holder’s conversion of the applicable Conversion Amount shall terminate, or (y) promptly honor its obligation
to deliver to the Holder a certificate or certificates representing such shares of Common Stock or credit the Holder’s balance account
with DTC for such shares of Common Stock and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over
the product of (A) such number of shares of Common Stock, times (B) any trading price of the Common Stock selected by the Holder in writing
as in effect at any time during the period beginning on the applicable Conversion Date and ending on the applicable Share Delivery Date.
Nothing herein shall limit the Holder’s right to pursue any other remedies available to it
hereunder, at law or in equity including, without limitation, 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 (or to electronically deliver such shares
of Common Stock) upon conversion of this Note as required pursuant to the terms hereof.
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(iii) Registration;
Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and addresses
of the holders of each Note and the Principal amount of the Notes (and stated interest thereon) held by such holders (the “Registered
Notes”). The entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company and
the holders of the Notes shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes, including,
without limitation, the right to receive payments of Principal and Interest, if any, hereunder, notwithstanding notice to the contrary.
A Registered Note may be assigned or sold in whole or in part only by registration of such assignment or sale on the Register. Upon its
receipt of a request to assign or sell all or part of any Registered Note by the Holder, the Company shall record the information contained
therein in the Register and issue one or more new Registered Notes in the same aggregate Principal amount as the Principal amount of the
surrendered Registered Note to the designated assignee or transferee pursuant to Section 17. Notwithstanding anything to the contrary
in this Section 3(c)(iii), the Holder may assign any Note or any portion thereof to an Affiliate of the Holder or a Related Fund of the
Holder without delivering a request to assign or sell the Note to the Company and the recordation of such assignment or sale in the Register
(a “Related Party Assignment”); provided, that (x) the Company may continue to deal solely with such assigning
or selling Holder unless and until the Holder has delivered a request to assign or sell the Note or portion thereof to the Company for
recordation in the Register; (y) the failure of such assigning or selling Holder to deliver a request to assign or sell the Note or portion
thereof to the Company shall not affect the legality, validity, or binding effect of such assignment or sale and (z) such assigning or
selling Holder shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register (the “Related
Party Register”) comparable to the Register on behalf of the Company, and any such assignment or sale shall be effective upon
recordation of such assignment or sale in the Related Party Register. Notwithstanding anything to the contrary set forth herein, upon
conversion of any portion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this
Note to the Company unless (A) the full Conversion Amount represented by this Note is being converted or (B) the Holder has provided the
Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this Note upon physical
surrender of this Note. The Holder and the Company shall maintain records showing the Principal, Interest and Late Charges, if any, converted
and/or paid (as the case may be) and the dates of such conversions, and/or payments (as the case may be) or shall use such other method,
reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon conversion. If the Company
does not update the Register to record such Principal, Interest and Late Charges converted and/or paid (as the case may be) and the dates
of such conversions and/or payments (as the case may be) within two (2) Business Days of such occurrence, then the Register shall be automatically
deemed updated to reflect such occurrence.
(iv) Pro
Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from the Holder and one or more holder of Other
Notes for the same Conversion Date and the Company can convert some, but not all, of such portions of this Note and/or the Other Notes
submitted for conversion, the Company, subject to Section 3(d), shall convert from the Holder and each holder of Other Notes electing
to have Notes converted on such date, a pro rata amount of such holder’s portion of the Note and its Other Notes submitted for conversion
based on the Principal amount of this Note and principal amounts of the Other Notes submitted for conversion on such date by such holder
relative to the aggregate Principal amount of this Note and all Other Notes submitted for conversion on such date. In the event of a dispute
as to the number of shares of Common Stock issuable to the Holder in connection with a conversion of this Note, the Company shall issue
to the Holder the number of shares of Common Stock not in dispute and resolve such dispute in accordance with Section 22.
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(d) Beneficial
Ownership Conversion Limitations. Notwithstanding anything to the contrary contained herein, the Company shall not issue any shares
of Common Stock pursuant to the terms of this Note, and the Holder shall not have the right to any shares of Common Stock otherwise issuable
pursuant to the terms and conditions of this Note and any such issuance shall be null and void and treated as if never made, to the extent
that after giving effect to such issuance, the Holder together with the other Attribution Parties collectively would beneficially own
in excess of 4.99% (the “Maximum Percentage”) of the number of shares of Common Stock outstanding immediately after
giving effect to such issuance. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned
by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution
Parties plus the number of shares of Common Stock issuable pursuant to the terms of this Note with respect to which the determination
of such sentence is being made, but shall exclude the number of shares of Common Stock which would be issuable (i) pursuant to the terms
of the remaining, nonconverted portion of this Note beneficially owned by the Holder or any of the other Attribution Parties and (ii)
upon exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation,
any convertible notes or convertible preferred stock or warrants, including the Other Notes) beneficially owned by the Holder or any other
Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3(d). For purposes
of this Section 3(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of determining
the number of outstanding shares of Common Stock the Holder may acquire pursuant to the terms of the Note without exceeding the Maximum
Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (i) the Company’s most recent
Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case
may be, (ii) a more recent public announcement by the Company or (iii) any other written notice by the Company or the Transfer Agent setting
forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives
a Conversion Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding
Share Number, the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent
that such Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 3(d),
to exceed the Maximum Percentage, the Holder shall notify the Company of a reduced number of shares of Common Stock to be purchased pursuant
to such Conversion Notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1)
Trading Day confirm orally and in writing or by electronic mail 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 and any other Attribution Party since the date as of which the Reported Outstanding
Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon conversion of this Note would result
in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of
the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued
by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership would exceed the Maximum Percentage
(the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio and any portion of the Conversion
Amount so converted shall be reinstated, and the Holder shall not have the power to vote or to transfer the Excess Shares. Upon delivery
of a written notice to the Company, the Holder may from time to time increase or decrease the Maximum Percentage to any other percentage
not in excess of 9.99% as specified in such notice; provided that (i) any such increase in the Maximum Percentage will not be effective
until the sixty-first (61st) day after such notice is delivered to the Company and (ii) any such increase or decrease will
apply only to the Holder and the other Attribution Parties and not to any other holder of Notes that is not an Attribution Party of the
Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms of this Note in excess of the Maximum Percentage
shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1)
of the Exchange Act. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 3(d) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be
defective or inconsistent with the intended beneficial ownership limitation contained in this Section 3(d) or to make changes or supplements
necessary or desirable to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall
apply to a successor holder of this Note.
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(e) Nasdaq
Conversion Limitation. Notwithstanding anything to the contrary contained herein, prior to the receipt of Stockholder Approval (as
defined below), the Company shall not issue, and the Holder shall not be entitled to receive, any shares of Common Stock pursuant to the
terms of this Note to the extent that the aggregate number of (i) shares of Common Stock issued or issuable to the Holder upon conversion
of this Note plus (ii) Commitment Shares (as defined in the Purchase Agreement) issued or issuable to the Holder would exceed the Holder’s
Nasdaq Cap (as defined below). For purposes hereof: (A) “Nasdaq Cap” means 19.99% of the total number of shares of
Common Stock outstanding as of the date of the Purchase Agreement (the “Signing Date Share Count”); (B) “Holder’s
Nasdaq Cap” means the number of shares of Common Stock equal to the product of (x) the Nasdaq Cap multiplied by (y) the Pro
Rata Amount; and (C) “Stockholder Approval” means the approval by the Company’s stockholders of the issuance
of shares of Common Stock pursuant to the Notes in accordance with Nasdaq Listing Rule 5635. Any portion of a requested conversion that
would cause the aggregate issuances to the Holder to exceed the Holder’s Nasdaq Cap shall be null and void to the extent of such
excess, and the applicable Conversion Amount shall be reinstated. The limitation set forth in this Section 3(e) constitutes a separate
contractual right granted by the Company to this Holder individually, independent of the rights of each other holder of Notes, and shall
not in any way be construed as the holders of Notes acting in concert or as a Group with respect to the purchase, disposition or voting
of securities or otherwise.
(4) RIGHTS
UPON EVENT OF DEFAULT.
(a) Event
of Default. The occurrence and continuance of each of the following events or failure to comply therewith shall constitute an “Event
of Default” and each of the events described in clauses (vii) and (viii) shall also constitute a “Bankruptcy Event
of Default”:
(i) the
failure of the applicable Registration Statement required to be filed pursuant to the Registration Rights Agreement to be filed on or
prior to the date that is fifteen (15) days after the applicable Filing Date (as defined in the Registration Rights Agreement) or to be
declared effective by the SEC on or prior to the date that is thirty (30) days after the applicable Effectiveness Date (as defined in
the Registration Rights Agreement), or, while the applicable Registration Statement is required to be maintained effective pursuant to
the terms of the Registration Rights Agreement, the effectiveness of the applicable Registration Statement lapses for any reason (including,
without limitation, the issuance of a stop order) or is unavailable to any holder of the Notes for sale of all of such holder’s
Registrable Instruments in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability continues
for a period of fifteen (15) consecutive days or for more than an aggregate of thirty (30) days in any 365-day period (other than as permitted
pursuant to the Registration Rights Agreement);
(ii) the
failure of the Common Stock to be listed on an Eligible Market, or the suspension of the Common Stock from trading on an Eligible Market,
in each case unless such failure or suspension is cured within thirty (30) days;
(iii) the
Company’s failure to deliver the required number of shares of Common Stock within five (5) Trading Days after the applicable Conversion
Notice;
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(iv) at
any time following the fifth (5th) consecutive Business Day that the Holder’s Authorized Share Allocation (as defined
in Section 9(a)) is less than the Holder’s Pro Rata Amount of the Required Reserve Amount (as defined in Section 9(a));
(v) the
Company’s failure to pay to the Holder any amount of Principal, Interest, Late Charges, Redemption Price or other amounts when and
as due under this Note or any other Transaction Document, in which case only if such failure continues for a period of at least an aggregate
of ten (10) Business Days;
(vi) any
default under, redemption of or acceleration prior to maturity of any Indebtedness of the Company or any of its Subsidiaries in excess
of $250,000 in the aggregate, other than with respect to this Note or any Other Notes;
(vii) the
Company or any of its Subsidiaries, pursuant to or within the meaning of Title 11, U.S. Code, or any similar federal, foreign or state
law for the relief of debtors (collectively, “Bankruptcy Law”), (A) commences a bankruptcy voluntary case, (B) consents
to the entry of an order for relief against it in an involuntary bankruptcy case, (C) consents to the appointment of a receiver, trustee,
assignee, liquidator or similar official (a “Custodian”), (D) makes a general assignment for the benefit of its creditors
or (E) admits in writing that it is generally unable to pay its debts as they become due;
(viii) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company or any of
its Subsidiaries in an involuntary case, (B) appoints a Custodian of the Company or any of its Subsidiaries or (C) orders the liquidation
of the Company or any of its Subsidiaries;
(ix) a
final judgment or judgments for the payment of money aggregating in excess of $250,000 are rendered against the Company or any of its
Subsidiaries and which judgments are not, within sixty (60) days after the entry thereof, bonded, discharged or stayed pending appeal,
or are not discharged within sixty (60) days after the expiration of such stay; provided, however, that any judgment which
is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the $250,000 amount set forth
above so long as the Company provides the Holder a written statement from such insurer or indemnity provider (which written statement
shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company
or such Subsidiary (as the case may be) will receive the proceeds of such insurance or indemnity within thirty (30) days of the issuance
of such judgment;
(x) other
than as specifically set forth in another clause of this Section 4(a), the Company or any of its Subsidiaries breaches any representation,
warranty, covenant or other term or condition of any Transaction Document, except, in the case of a breach of a covenant or other term
or condition of any Transaction Document which is curable, only if such breach continues for a period of at least an aggregate of ten
(10) Business Days;
- 8 -
(xi) any
breach or failure in any respect to comply with either Sections 13 or 14 of this Note;
(xii) any
material damage to, or loss, theft or destruction of a material amount of property of the Company, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than thirty (30) consecutive
days, the cessation or substantial curtailment of revenue producing activities at any facility of the Company or any Subsidiary, if any
such event or circumstance would reasonably be expected to have a Material Adverse Effect;
(xiii) a
false or inaccurate certification (including a false or inaccurate deemed certification) by the Company as to whether any Event of Default
has occurred;
(xiv) any
Material Adverse Effect occurs;
(xv) the
Company fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the Holder upon conversion or
exercise (as the case may be) of any Instruments (as defined in the Purchase Agreement) (including this Note) as and when required by
such Instruments or the Purchase Agreement, unless otherwise then prohibited by applicable federal securities laws, and any such failure
remains uncured for at least five (5) Trading Days;
(xvi) the
electronic transfer by the Company of shares of Common Stock through the Depository Trust Company or another established clearing corporation
is no longer available or is subject to a “chill” which continues for period of three (3) days; or
(xvii) any
Event of Default (as defined in the Other Notes) occurs and continues with respect to any Other Notes.
(b) Redemption
Right. At any time after the earlier of the Holder’s receipt of an Event of Default Notice (as defined in Section 14(g)) and
the Holder becoming aware of an Event of Default, the Holder may require the Company to redeem (an “Event of Default Redemption”)
all or any portion of this Note by delivering written notice thereof (the “Event of Default Redemption Notice”) to
the Company, which Event of Default Redemption Notice shall indicate the portion of this Note the Holder is electing to require the Company
to redeem. Each portion of this Note subject to redemption by the Company pursuant to this Section 4(b) shall be redeemed by the Company
in cash by wire transfer of immediately available funds at a price equal to the greater of (x) the product of (A) 125% and (B) the Conversion
Amount being redeemed and (y) the product of (A) the Conversion Amount being redeemed and (B) the quotient determined by dividing (I)
the greatest Closing Sale Price of the shares of Common Stock during the period beginning on the date immediately preceding such Event
of Default and ending on the date the Holder delivers the Event of Default Redemption Notice, by (II) the lowest Conversion Price in effect
during such period, in addition to any and all other amounts due hereunder (the “Event of Default Redemption Price”).
Redemptions required by this Section 4(b) shall be made in accordance with the provisions of Section 10. To the extent redemptions required
by this Section 4(b) are deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the Company, such
redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 4, but subject to Section
3(d), until the Event of Default Redemption Price is paid in full, the Conversion Amount submitted for redemption under this Section 4(b)
may be converted, in whole or in part, by the Holder into Common Stock pursuant to Section 3. The parties hereto agree that in the event
of the Company’s redemption of any portion of the Note under this Section 4(b), the Holder’s damages would be uncertain and
difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability
of a suitable substitute investment opportunity for the Holder. Accordingly, any Event of Default redemption premium due under this Section
4(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment
opportunity and not as a penalty.
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(c) Automatic
Acceleration upon Event of Default; Default Premium. Notwithstanding anything to the contrary herein, and notwithstanding any conversion
that is then required or in process, upon the occurrence and continuance of any Event of Default (including, without limitation, any Bankruptcy
Event of Default), whether occurring prior to or following the Maturity Date, all outstanding Principal and accrued and unpaid Interest
shall become immediately due and payable, and the Company shall immediately pay to the Holder an amount in cash equal to 110% of the sum
of (i) all outstanding Principal and (ii) all accrued and unpaid Interest on such Principal (the “Default Premium Redemption
Price”), in addition to any and all accrued and unpaid Late Charges and any other amounts due hereunder, without the requirement
for any notice or demand or other action by the Holder or any other Person; provided that the Holder may, in its sole discretion, waive
such right to receive payment upon an Event of Default, in whole or in part, and any such waiver shall not affect any other rights of
the Holder hereunder, including any other rights in respect of such Event of Default, any right to conversion, and any right to payment
of the Event of Default Redemption Price or any other Redemption Price, as applicable. The parties hereto agree that in the event of the
Company’s obligation to pay the Default Premium Redemption Price under this Section 4(c), the Holder’s damages would be uncertain
and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability
of a suitable substitute investment opportunity for the Holder. Accordingly, the Default Premium Redemption Price is intended by the parties
to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a penalty.
For the avoidance of doubt, the automatic acceleration and Default Premium Redemption Price set forth in this Section 4(c) are in addition
to, and not in lieu of, the Holder’s optional redemption rights under Section 4(b). Redemptions required by this Section 4(c) shall
be made in accordance with the provisions of Section 10.
(5) RIGHTS
UPON FUNDAMENTAL TRANSACTION AND CHANGE OF CONTROL.
(a) Assumption.
If, at any time while this Note is outstanding, the Company, directly or indirectly, in one or more related transactions effects any Fundamental
Transaction or a Fundamental Transaction occurs or is consummated, then, upon any subsequent conversion of this Note, the Holder shall
have the right to receive, for each share of Common Stock that would have been issuable upon such conversion immediately prior to the
occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in Section 3(d) on the conversion
of this Note), the number of shares of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving
corporation, and any additional consideration (the “Alternate 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 immediately prior to such Fundamental
Transaction (without regard to any limitation in Section 3(d) on the conversion of this Note). 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 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. If holders of Common Stock are given any choice as to the securities, cash or property 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 successor entity in a Fundamental Transaction in which
the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company
under this Note and the other Transaction Documents in accordance with the provisions of this Section 5(a) pursuant to written agreements
in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental
Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Note a security of the Successor Entity
evidenced by a written instrument substantially similar in form and substance to this Note which is convertible for a corresponding number
of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable
upon conversion of this Note (without regard to any limitations on the conversion of this Note) prior to such Fundamental Transaction,
and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the
relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such
number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of this Note immediately
prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder.
Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this
Note (so that from and after the occurrence or consummation of such Fundamental Transaction, each
and every provision of this Note and the other Transaction Documents referring to the “Company” shall refer instead to each
of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities,
jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor
Entities shall assume all of the obligations of the Company prior thereto under this Note and the other Transaction Documents with the
same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company in
this Note.
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(b) Redemption
Right. No sooner than twenty-five (25) days nor later than twenty (20) days prior to the consummation of a Change of Control, but
not prior to the public announcement of such Change of Control, the Company shall deliver written notice thereof via electronic mail and
overnight courier to the Holder (a “Change of Control Notice”) setting forth
a description of such transaction in reasonable detail and the anticipated Change of Control Redemption Date (as defined in Section 10(a))
if then known. At any time during the period beginning on the earlier to occur of (x) any oral or written agreement by the Company
or any of its Subsidiaries, upon consummation of which the transaction contemplated thereby would reasonably be expected to result in
a Change of Control, (y) the Holder becoming aware of a Change of Control and (z) the Holder’s receipt of a Change of Control Notice
and ending twenty-five (25) Trading Days after the date of the consummation of such Change of Control, the Holder may require the Company
to redeem (a “Change of Control Redemption”) all or any portion of this Note by delivering written notice thereof (“Change
of Control Redemption Notice”) to the Company, which Change of Control Redemption Notice shall indicate the Conversion Amount
the Holder is electing to require the Company to redeem. The portion of this Note subject to redemption pursuant to this Section 5(b)
shall be redeemed by the Company in cash by wire transfer of immediately available funds at a price equal to 110% of the sum of (A) the
outstanding Principal being redeemed and (B) all accrued and unpaid Interest on such Principal (the “Change of Control Redemption
Price”). Redemptions required by this Section 5 shall be made in accordance with the provisions of Section 10 and shall have
priority to payments to stockholders in connection with a Change of Control. To the extent redemptions required by this Section 5(b) are
deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the Company, such redemptions shall be deemed
to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 5, but subject to Section 3(d), until the Change
of Control Redemption Price is paid in full, the Conversion Amount submitted for redemption under this Section 5(b) may be converted,
in whole or in part, by the Holder into Common Stock pursuant to Section 3. Notwithstanding the foregoing, following delivery of a Change
of Control Notice, the Holder may also continue to exercise any and all of its other rights under this Note, including, without limitation,
its conversion rights pursuant to Section 3 and its redemption rights pursuant to Section 4. The parties hereto agree that in the event
of the Company’s redemption of any portion of the Note under this Section 5(b), the Holder’s damages would be uncertain and
difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability
of a suitable substitute investment opportunity for the Holder. Accordingly, any Change of Control redemption premium due under this Section
5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment
opportunity and not as a penalty.
(6) DISTRIBUTION
OF ASSETS; RIGHTS UPON ISSUANCE OF PURCHASE RIGHTS.
(a) Distribution
of Assets. If the Company shall, on or after the Subscription Date, declare or make any dividend or other distributions of its assets
(or rights to acquire its assets) to any or all holders of shares of Common Stock, by way of return of capital or otherwise (including
without limitation, any distribution of cash, stock or other securities, property, Options, evidence of Indebtedness or any other assets
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”),
then the Holder will be entitled to such Distribution as if the Holder had held the number of shares of Common Stock acquirable upon complete
conversion of this Note (without taking into account any limitations or restrictions on the convertibility of this Note) immediately prior
to the date on which a record is taken for such Distribution or, if no such record is taken, the date as of which the record holders of
Common Stock are to be determined for such Distributions (provided, however, that to the extent that the Holder’s
right to participate in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage,
then the Holder shall not be entitled to participate in such Distribution to such extent (and shall not be entitled to beneficial ownership
of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to such extent) and the portion of such Distribution
shall be held in abeyance for the Holder until such time or times as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such Distribution (and any Distributions
declared or made on such initial Distribution or on any subsequent Distribution to be held similarly in abeyance) to the same extent as
if there had been no such limitation).
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(b) Purchase
Rights. If at any time on or after the Subscription Date the Company grants, issues or sells any Options, Convertible Securities or
rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Stock (the “Purchase
Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase
Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion
of this Note (without taking into account any limitations or restrictions on the convertibility of this Note) immediately prior to the
date on which a record is taken for the grant, issuance or sale of such Purchase Rights, 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 grant, issue or sale of such Purchase Rights (provided,
however, that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder
and the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase
Right to such extent (and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Purchase Right
(and beneficial ownership) to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such
time or times as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage,
at which time or times the Holder shall be granted such right (and any Purchase Right granted, issued or sold on such initial Purchase
Right or on any subsequent Purchase Right to be held similarly in abeyance) to the same extent as if there had been no such limitation).
(7) ADJUSTMENTS
TO CONVERSION PRICE. The Conversion Price will be subject to adjustment from time to time as provided in this Section 7.
(a) Adjustment
of Conversion Price upon Subdivision or Combination of Common Stock. If the Company at any time on or after the Subscription Date
subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common
Stock into a greater number of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced.
If the Company at any time on or after the Subscription Date combines (by combination, reverse stock split or otherwise) one or more classes
of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination
will be proportionately increased. Any adjustment under this Section 7(a) shall become effective at the close of business on the
date the subdivision or combination becomes effective.
(b) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Principal Market or such other principal securities exchange or
trading market on which the Common Stock is then listed, the Company may at any time during the term of this Note, with the prior written
consent of the Required Holders, reduce the then current Conversion Price to any amount and for any period of time deemed appropriate
by the Board of Directors of the Company.
(8) NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation or Bylaws or through
any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in
good faith carry out all of the provisions of this Note and take all action as may be required to protect the rights of the Holder of
this Note.
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(9) RESERVATION
OF AUTHORIZED SHARES.
(a) Reservation.
From and after the date the Issuance Date, the Company shall reserve a number of authorized and otherwise unreserved shares of Common
Stock to satisfy its obligation to issue shares of Common Stock pursuant to the terms of this Note and the Other Notes equal to two hundred
percent (200%) of the maximum number of Conversion Shares issuable pursuant to the terms of the Notes (without regard to any limitation
in Section 3(d) on the conversion of this Note) (the “Required Reserve Amount”). So long as any of this Note and the
Other Notes are outstanding, the Company shall take all action necessary to reserve and keep available out of its authorized and unissued
Common Stock the Required Reserve Amount solely for the purpose of issuing shares of Common Stock pursuant to the terms of this Note and
the Other Notes. The initial number of shares of Common Stock reserved for issuances pursuant to the terms of this Note and the Other
Notes and each increase in the number of shares so reserved shall be allocated pro rata among the Holder and the holders of the Other
Notes based on the Principal amount of this Note and the Other Notes held by each holder at the Closing (as defined in the Purchase Agreement)
(the “Authorized Share Allocation”). In the event that a holder shall sell or otherwise transfer this Note or any of
such holder’s Other Notes, each transferee shall be allocated a pro rata portion of such holder’s Authorized Share Allocation
with respect to the portion of the Notes being transferred. Any shares of Common Stock reserved and allocated to any Person which ceases
to hold any Notes shall be allocated to the Holder and the remaining holders of Other Notes, pro rata based on the Principal amount of
this Note and the Other Notes then held by such holders.
(b) Insufficient
Authorized Shares. If at any time while any of the Notes remain outstanding the Company does not have a sufficient number of authorized
and unreserved shares of Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Notes at least a number
of shares of Common Stock equal to the Required Reserve Amount (an “Authorized Share Failure”), then the Company shall
immediately take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow
the Company to reserve the Required Reserve Amount for the Notes then outstanding. Without limiting the generality of the foregoing sentence,
as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than sixty (60) days after
the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the approval of an increase
in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall provide each stockholder with a
proxy statement and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized shares of Common
Stock and to cause its Board of Directors to recommend to the stockholders that they approve such proposal. Notwithstanding the foregoing,
if during any such time of an Authorized Share Failure, the Company is able to obtain the written consent of a majority of the shares
of its issued and outstanding Common Stock to approve the increase in the number of authorized shares of Common Stock, the Company may
satisfy this obligation by obtaining such consent and submitting for filing with the SEC an Information Statement on Schedule 14C. If,
upon any conversion of this Note, the Company does not have sufficient authorized shares to deliver in satisfaction of such conversion,
then unless the Holder elects to rescind such attempted conversion, the Holder may require the Company to pay to the Holder within two
(2) Trading Days of the applicable attempted conversion, cash in an amount equal to the product of (i) the number of shares of Common
Stock that the Company is unable to deliver pursuant to this Section 9, and (ii) the highest Closing Sale Price of the Common Stock during
the period beginning on the date of the applicable Conversion Date and ending on the date the Company makes the applicable cash payment.
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(10) REDEMPTIONS.
(a) Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder within three (3) Business Days after the Company’s
receipt of the Holder’s Event of Default Redemption Notice; provided that upon a Bankruptcy Event of Default, the Company shall
deliver the applicable Bankruptcy Event of Default Redemption Price in accordance with Section 4(c) (as applicable, the “Event
of Default Redemption Date”). If the Holder has submitted a Change of Control Redemption Notice in accordance with Section 5(b),
the Company shall deliver the applicable Change of Control Redemption Price to the Holder (i) concurrently with the consummation of such
Change of Control if such notice is received prior to the consummation of such Change of Control and (ii) within three (3) Business Days
after the Company’s receipt of such notice otherwise (such date, the “Change of Control Redemption Date”). The
Company shall pay the applicable Redemption Price to the Holder in cash by wire transfer of immediately available funds pursuant to wire
instructions provided by the Holder in writing to the Company on the applicable due date. In the event of a redemption of less than all
of the Conversion Amount of this Note, the Company shall promptly cause to be issued and delivered to the Holder a new Note (in accordance
with Section 17(d)) representing the outstanding Principal which has not been redeemed and any accrued Interest on such Principal which
shall be calculated as if no Redemption Notice has been delivered. In the event that the Company does not pay a Redemption Price to the
Holder within the time period required, at any time thereafter and until the Company pays such unpaid Redemption Price in full, the Holder
shall have the option, in lieu of redemption, to require the Company to promptly return to the Holder all or any portion of this Note
representing the Conversion Amount that was submitted for redemption and for which the applicable Redemption Price has not been paid.
Upon the Company’s receipt of such notice, (x) the applicable Redemption Notice shall be null and void with respect to such Conversion
Amount, (y) the Company shall immediately return this Note, or issue a new Note (in accordance with Section 17(d)) to the Holder representing
such Conversion Amount to be redeemed and (z) the Conversion Price of this Note or such new Notes shall be adjusted to the lesser of (A)
the Conversion Price as in effect on the date on which the applicable Redemption Notice is voided and (B) the lowest Closing Bid Price
of the Common Stock during the period beginning on and including the date on which the applicable Redemption Notice is delivered to the
Company and ending on and including the date on which the applicable Redemption Notice is voided. The Holder’s delivery of a notice
voiding a Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make
any payments of Late Charges which have accrued prior to the date of such notice with respect to the Conversion Amount subject to such
notice.
(b) Redemption
by Other Holders. Upon the Company’s receipt of notice from any of the holders of the Other Notes for redemption or repayment
as a result of an event or occurrence substantially similar to the events or occurrences described in Section 4(b) or Section 5(b) or
pursuant to corresponding provisions set forth in the Other Notes (each, an “Other Redemption Notice”), the Company
shall immediately, but no later than one (1) Business Day of its receipt thereof, forward to the Holder by electronic mail a copy of such
notice. If the Company receives a Redemption Notice and one or more Other Redemption Notices, during the seven (7) Business Day period
beginning on and including the date which is three (3) Business Days prior to the Company’s receipt of the Holder’s Redemption
Notice and ending on and including the date which is three (3) Business Days after the Company’s receipt of the Holder’s Redemption
Notice and the Company is unable to redeem all principal, interest and other amounts designated in such Redemption Notice and such Other
Redemption Notices received during such seven (7) Business Day period, then the Company shall redeem, a pro rata amount from the Holder
and each holder of the Other Notes based on the Principal amount of this Note and the Other Notes submitted for redemption pursuant to
such Redemption Notice and such Other Redemption Notices received by the Company during such seven (7) Business Day period.
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(c) Insufficient
Assets. If upon a Redemption Date, the assets of the Company are insufficient to pay the applicable Redemption Price, the Company
shall (i) take all appropriate action reasonably within its means to maximize the assets available for paying the applicable Redemption
Price, (ii) redeem out of all such assets available therefor on the applicable Redemption Date the maximum possible portion of the applicable
Redemption Price that it can redeem on such date, pro rata among the Holder and the holders of the Other Notes to be redeemed in proportion
to the aggregate Principal amount of this Note and the Other Notes outstanding on the applicable Redemption Date and (iii) following the
applicable Redemption Date, at any time and from time to time when additional assets of the Company become available to pay the balance
of the applicable Redemption Price of this Note and the Other Notes, the Company shall use such assets, at the end of the then current
fiscal quarter, to pay the balance of such Redemption Price of this Note and the Other Notes, or such portion thereof for which assets
are then available, on the basis set forth above at the applicable Redemption Price, and such assets will not be used prior to the end
of such fiscal quarter for any other purpose. Interest on the Principal amount of this Note and the Other Notes that have not been redeemed
shall continue to accrue until such time as the Company redeems this Note and the Other Notes. The Company shall pay the applicable Redemption
Price to the Holder in cash by wire transfer of immediately available funds pursuant to wire instructions provided by the Holder in writing
to the Company on the applicable due date without regard to the legal availability of funds unless expressly prohibited by applicable
law.
(11) VOTING
RIGHTS. The Holder shall have no voting rights as the holder of this Note, except as required by law and as expressly provided in
this Note.
(12) RANK.
All payments due under this Note (a) shall rank pari passu with all Other Notes and (b) shall be senior to all other Indebtedness
of the Company and its Subsidiaries (other than Yorkville Indebtedness (as defined in Section 31)), and (c) are secured by a second priority
perfected security interest in the Collateral pursuant to the Security Agreement, contractually subordinate to Liens securing the Yorkville
Indebtedness, which security interest shall rank pari passu with the security interests granted to the holders of the Other Notes and
shall automatically become a first priority security interest upon the full repayment of all obligations owed to Yorkville, without the
need for any amendment, consent, or further documentation.
(13) NEGATIVE
COVENANTS. Except as noted below, until all of the Notes have been converted, redeemed or otherwise satisfied in full in accordance
with their terms, the Company shall not, and the Company shall not permit any of its Subsidiaries without the prior written consent of
the Required Holders to, directly or indirectly by merger or otherwise:
(a) incur,
guarantee or assume any Indebtedness, other than Permitted Indebtedness;
(b) suffer
to exist any Indebtedness, other than Permitted Indebtedness;
(c) allow
or suffer to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including
accounts and contract rights) owned by the Company or any of its Subsidiaries (collectively, “Liens”) other than Permitted
Liens;
(d) redeem,
defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether
by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other than
this Note and the Other Notes), whether by way of payment in respect of principal of (or premium, if any) or interest on, such Indebtedness
if at the time such payment is due or is otherwise made or, after giving effect to such payment, an event constituting, or that with the
passage of time and without being cured would constitute, an Event of Default has occurred and is continuing;
(e) redeem,
defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether
by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (including,
without limitation Permitted Indebtedness other than this Note and the Other Notes), by way of payment in respect of principal of (or
premium, if any) such Indebtedness; provided, however, that this restriction shall not apply to scheduled or mandatory principal repayments
of Yorkville Indebtedness made in accordance with the terms of the Yorkville Documents as in effect on the Issuance Date. For clarity,
such restriction shall not preclude the payment of regularly scheduled interest payments which may accrue under such Permitted Indebtedness.
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(f) redeem
or repurchase any Equity Interest of the Company other than pursuant to existing rights associated with any Equity Interest of the Company
outstanding as of the date hereof;
(g) declare
or pay any cash dividend or distribution on any Equity Interest of the Company or of its Subsidiaries other than wholly-owned Subsidiaries;
(h) make,
any change in the nature of its business as described in the Company’s most recent Annual Report filed on Form 10-K with the SEC
or modify its corporate structure or purpose with the exception of any changes as result of the HOD Merger; or
(i) encumber,
license or otherwise allow any Liens on any Intellectual Property Rights, including, without limitation, any claims for damage by way
of any past, present, or future infringement of any of the foregoing, in each case, other than Permitted Liens;
(j) enter
into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase,
sale, lease, license, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate,
except in the ordinary course of business in a manner and to an extent consistent with past practice and necessary or desirable for the
prudent operation of its business, for fair consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable
in a comparable arm’s length transaction with a Person that is not an Affiliate thereof; or
(k) issue
any Notes or issue any other securities that would cause a breach or default under the Notes.
(14) AFFIRMATIVE
COVENANTS. Until all of the Notes have been converted, redeemed or otherwise satisfied in full in accordance with their terms, the
Company shall, and the Company shall cause each Subsidiary to, unless otherwise agreed to by the Required Holders, directly
and indirectly:
(a) maintain
the listing of the Common Stock on an Eligible Market and take all action necessary to maintain such listing;
(b) maintain
and preserve its existence, rights and privileges, and all material licenses and permits necessary for the conduct of its business, and
become or remain duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by
it or in which the transaction of its business makes such qualification necessary;
(c) maintain
and preserve all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition,
ordinary wear and tear excepted, and comply at all times with the provisions of all leases to which it is a party as lessee or under which
it occupies property, so as to prevent any loss or forfeiture thereof or thereunder;
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(d) take
all action necessary or advisable to maintain all of the Intellectual Property Rights that is necessary or material to the conduct of
its business in full force and effect;
(e) maintain
insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability,
hazard, rent and business interruption insurance) with respect to its properties (including all real properties leased or owned by it)
and business, in such amounts and covering such risks as is required by any governmental authority having jurisdiction with respect thereto
or as is carried generally in accordance with sound business practice by companies in similar businesses similarly situated;
(f) cause
each existing Subsidiary, within five (5) Business Days of the Issuance Date, and each Subsidiary formed or acquired on or after the Subscription
Date, within five (5) Business Days of such formation or acquisition, to execute and deliver to each holder of Notes a full and unconditional
guaranty agreement in form and substance reasonably acceptable to the Required Holders;
(g) promptly,
but in any event within one (1) Business Day, notify the Holder and the holders of the Other Notes in writing whenever an Event of Default
occurs (an “Event of Default Notice”), and simultaneously with the delivery of such notice to the Holder and the holders
of the Other Notes, file a Current Report on Form 8-K with the SEC to state such fact; and
(h) timely
file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company
after the Issuance Date pursuant to the Exchange Act, and the Company shall not terminate its status as an issuer required to file reports
under the Exchange Act, and shall take all action necessary to maintain “current public information” as defined in Rule 144
promulgated under the Securities Act;
(15) MOST
FAVORED NATION. If the Company issues any convertible securities or debt with terms more favorable than this Note, the Holder may
elect to have such terms apply to this Note. The Holder has sole discretion to choose such terms as it views as more favorable without
being required to choose all terms of such subsequent financing.
(16) VOTE
TO ISSUE, OR CHANGE THE TERMS OF, NOTES. The affirmative vote at a meeting duly called for such purpose or the written consent without
a meeting of the Required Holders shall be required for any exchange, change or amendment or waiver of any provision to this Note or any
of the Other Notes. Any exchange, change, amendment or waiver by the Company and the Required Holders shall be binding on the Holder of
this Note and all holders of the Other Notes. The Holder hereby acknowledges and agrees that any action taken pursuant to this Section
may result in, or be perceived to result in, a disproportionate impact on the Holder compared to the impact of such action on one or more
holder(s) of Other Notes. This provision constitutes a separate right granted to each of the holders of Notes by the Company and shall
not in any way be construed as such holders acting in concert or as a group with respect to the purchase, disposition or voting of securities
or otherwise.
(17) TRANSFER.
This Note and any shares of Common Stock issued upon conversion of this Note may be offered, sold, assigned or transferred by the Holder
without the consent of the Company, subject only to the provisions of Section 4.1 of the Purchase Agreement.
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(18) REISSUANCE
OF THIS NOTE.
(a) Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and
deliver upon the order of the Holder a new Note (in accordance with Section 17(d) and subject to Section 3(c)(iii)), registered as the
Holder may request, representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal
is being transferred, a new Note (in accordance with Section 17(d)) to the Holder representing the outstanding Principal not being transferred.
The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii)
following conversion or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the
Principal stated on the face of this Note.
(b) Lost,
Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company
in customary form (but without any obligation to post a surety or other bond) and, in the case of mutilation, upon surrender and cancellation
of this Note, the Company shall execute and deliver to the Holder a new Note (in accordance with Section 17(d)) representing the outstanding
Principal.
(c) Note
Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office
of the Company, for a new Note or Notes (in accordance with Section 17(d)) representing in the aggregate the outstanding Principal of
this Note, and each such new Note will represent such portion of such outstanding Principal as is designated by the Holder at the time
of such surrender.
(d) Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall be
of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or
in the case of a new Note being issued pursuant to Section 17(a) or Section 17(c), the Principal designated by the Holder which, when
added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed the Principal remaining
outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance date, as indicated on the face
of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and
(v) shall represent accrued and unpaid Interest and Late Charges, if any, on the Principal and Interest of this Note, from the Issuance
Date.
(19) REMEDIES,
CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and in
addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree
of specific performance and/or other injunctive relief). No remedy contained herein shall be deemed
a waiver of compliance with the provisions giving rise to such remedy. Nothing herein shall limit the Holder’s right to pursue
actual and consequential damages for any failure by the Company to comply with the terms of this Note. 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, redemption 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). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that
the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened
breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without the
necessity of showing economic loss and without any bond or other security being required.
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(20) PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement or
is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to
enforce the provisions of this Note or (b) 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 the 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. The Company expressly acknowledges and agrees that no amounts
due under this Note shall be affected, or limited, by the fact that the purchase price paid for this Note was less than the original Principal
amount hereof.
(21) CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and all the Purchasers and shall not be construed against
any Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect the
interpretation of, this Note.
(22) FAILURE
OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized
representative of the waiving party.
(23) DISPUTE
RESOLUTION. In the case of a dispute as to the determination of the Closing Bid Price or the Closing Sale Price or the arithmetic
calculation of the Conversion Rate, the Conversion Price or any Redemption Price, the Company shall pay the applicable Redemption Price
that is not disputed or shall cause the Transfer Agent to issue to the Holder the number of shares of Common Stock that is not disputed,
and the Company shall submit the disputed determinations or arithmetic calculations via electronic mail within one (1) Business Day of
receipt, or deemed receipt, of the Conversion Notice or Redemption Notice or other event giving rise to such dispute, as the case may
be, to the Holder. If the Holder and the Company are unable to agree upon such determination or calculation within one (1) Business Day
of such disputed determination or arithmetic calculation being submitted to the Holder, then the Company shall, within one (1) Business
Day submit via electronic mail (a) the disputed determination of the Closing Bid Price or the Closing Sale Price to an independent, reputable
investment bank selected by the Holder and approved by the Company, such approval not to be unreasonably withheld, conditioned or delayed,
or (b) the disputed arithmetic calculation of the Conversion Rate, Conversion Price or any Redemption Price to an independent, outside
accountant, selected by the Holder and approved by the Company, such approval not to be unreasonably withheld, conditioned or delayed.
The Company, at the Company’s expense, shall cause the investment bank or the accountant, as the case may be, to perform the determinations
or calculations and notify the Company and the Holder of the results no later than five (5) Business Days from the time it receives the
disputed determinations or calculations. Such investment bank’s or accountant’s determination or calculation, as the case
may be, shall be binding upon all parties absent demonstrable error.
(24) NOTICES;
PAYMENTS.
(a) Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with
Section 5.4 of the Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to
this Note, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the
foregoing, the Company shall give written notice to the Holder (i) immediately upon any adjustment of the Conversion Price, setting forth
in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least twenty (20) Business Days prior to the date
on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the shares of Common Stock,
(B) with respect to any grants, issuances or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities
or other property to holders of shares of Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction,
dissolution or liquidation, provided in each case that such information shall be made known to the public prior to or in conjunction with
such notice being provided to the Holder.
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(b) Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, such payment shall be made in lawful money
of the United States of America via wire transfer of immediately available funds to an account designated by the Holder; provided,
that the Holder, upon written notice to the Company, may elect to receive a payment of cash in lawful money of the United States of America
by a check drawn on the account of the Company and sent via overnight courier service to such Person at such address as previously provided
to the Company in writing (which address, in the case of each of the Purchasers, shall initially be as set forth on the signature pages
attached to the Purchase Agreement). Whenever any amount expressed to be due by the terms of this Note is due on any day which is not
a Business Day, the same shall instead be due on the next succeeding day which is a Business Day. Any amount of Principal or other amounts
due under the Transaction Documents which is not paid when due shall result in a late charge being incurred and payable by the Company
in an amount equal to interest on such amount at the rate of twelve percent (12.0%) per annum from the date such amount was due until
the same is paid in full (“Late Charges”).
(25) CANCELLATION.
After all Principal, any accrued Interest and any other amounts at any time owed on this Note have been paid in full, this Note shall
automatically be deemed canceled and shall not be reissued, sold or transferred.
(26) WAIVER
OF NOTICE. To the extent permitted by law, the Company hereby waives demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of this Note and the Purchase Agreement.
(27) GOVERNING
LAW; JURISDICTION; JURY TRIAL. This Note shall be governed by and construed and enforced in accordance with, and all questions concerning
the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Delaware,
without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of Delaware; provided that procedural matters shall
be governed by the procedural laws of the forum in which any dispute is adjudicated. The Company hereby irrevocably submits to the exclusive
jurisdiction of the Court of Chancery of the State of Delaware or, if such court lacks jurisdiction, the Superior Court of the State of
Delaware, or the United States District Court for the District of Delaware, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. The Company hereby
irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing
a copy thereof to the Company at the address set forth on the Company’s signature page attached to the Purchase Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to
preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s
obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other
court ruling in favor of the Holder. EACH OF THE COMPANY AND THE HOLDER HEREBY IRREVOCABLY WAIVES ANY RIGHT IT OR THEY MAY HAVE TO,
AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE
OR ANY TRANSACTION CONTEMPLATED HEREBY.
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(28) Severability.
If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction,
the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that
it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining
provisions of this Note so long as this Note as so modified continues to express, without material change, the original intentions of
the Company and the Holder as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s)
in question does not substantially impair the respective expectations or reciprocal obligations of the Company or the Holder or the practical
realization of the benefits that would otherwise be conferred upon the Company or the Holder. The Company and the Holder will endeavor
in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which
comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
(29) DISCLOSURE.
Upon receipt or delivery by the Company of any notice in accordance with the terms of this Note, unless the Company has in good faith
determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Company or its Subsidiaries,
the Company shall contemporaneously with any such receipt or delivery publicly disclose such material, nonpublic information on a Current
Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains material, nonpublic information relating
to the Company or its Subsidiaries, the Company so shall indicate to the Holder contemporaneously with delivery of such notice, and in
the absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute
material, nonpublic information relating to the Company or its Subsidiaries.
(30) USURY.
This Note is subject to the express condition that at no time shall the Company be obligated or required to pay interest hereunder (including,
for the avoidance of doubt, any original issue discount, fees, charges, or other amounts deemed to constitute interest under applicable
law) at a rate or in an amount which could subject the Holder to either civil or criminal liability as a result of being in excess of
the maximum interest rate or amount which the Company is permitted by applicable law to contract or agree to pay. If by the terms of this
Note, the Company is at any time required or obligated to pay interest hereunder, including by way of an original issue discount, at a
rate or in an amount in excess of such maximum rate or amount, the rate or amount of interest under this Note shall be deemed to be immediately
reduced to such maximum rate or amount and the interest payable shall be computed at such maximum rate or be in such maximum amount and
all prior interest payments in excess of such maximum rate or amount shall be applied and shall be deemed to have been payments in reduction
of the principal balance of this Note.
(31) CERTAIN
DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:
(a) “Affiliate”
shall have the meaning ascribed to such term in Rule 405 of the Securities Act.
(b) “Attribution
Parties” means, collectively, the following Persons: (i) any investment vehicle, including, any funds, feeder funds or managed
accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s investment
manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any
Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Person
whose beneficial ownership of the Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties
for purposes of Section 13(d) of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and
all other Attribution Parties to the Maximum Percentage.
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(c)
“Bloomberg” means Bloomberg Financial Markets.
(d) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York, New York
generally are open for use by customers on such day.
(e) “Calendar
Quarter” means each of: the period beginning on and including January 1 and ending on and including March 31; the period beginning
on and including April 1 and ending on and including June 30; the period beginning on and including July 1 and ending on and including
September 30; and the period beginning on and including October 1 and ending on and including December 31.
(f) “Change
of Control” means any Fundamental Transaction other than (i) any reorganization, recapitalization or reclassification of the
Common Stock in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization or reclassification
continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and, directly or indirectly,
are the holders of a majority of the voting power of the surviving entity (or entities with the authority or voting power to elect the
members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such reorganization,
recapitalization or reclassification or (ii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction
of incorporation of the Company; provided that notwithstanding the foregoing HOD Merger, shall not be deemed a Change of Control.
(g) “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal 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, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, 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, 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 on the Pink Open Market (f/k/a OTC Pink) published by OTC Markets Group,
Inc. (or a similar organization or agency succeeding to its functions of reporting prices). If the Closing Bid Price or the Closing Sale
Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale
Price, as the case may be, of such security on such date shall be the fair market value as mutually determined by the Company and the
Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved
pursuant to Section 22. All such determinations to be appropriately adjusted for any stock dividend, stock split, stock combination, reclassification
or other similar transaction relating to the Common Stock during the applicable calculation period.
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(h) “Closing
Date” shall have the meaning set forth in the Purchase Agreement, which date is the date the Company initially issued Notes
pursuant to the terms of the Purchase Agreement.
(i) “Common
Stock” means (i) the Company’s shares of common stock, par value $0.0001 per share, and (ii) any capital stock
into which such Common Stock shall be changed or any capital stock resulting from a reorganization, recapitalization or reclassification
of such Common Stock.
(j) “Contingent
Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect
to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or
discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in
whole or in part) against loss with respect thereto.
(k) “Conversion
Shares” means shares of Common Stock issuable by the Company pursuant to the terms of any of the Notes, including any related
Interest and Late Charges so converted.
(l) “Convertible
Securities” means any stock or securities (other than Options) directly or indirectly convertible into or exercisable or exchangeable
for shares of Common Stock.
(m) “Eligible
Market” means the Principal Market, The New York Stock Exchange, The Nasdaq Global Market, The Nasdaq Global Select Market or
the NYSE American.
(n) “Equity
Interests” means (a) all shares of capital stock (whether denominated as common capital stock or preferred capital stock), equity
interests, beneficial, partnership or membership interests, joint venture interests, participations or other ownership or profit interests
in or equivalents (regardless of how designated) of or in a Person (other than an individual), whether voting or non-voting and (b) all
securities convertible into or exchangeable for any of the foregoing and all warrants, Options or other rights to purchase, subscribe
for or otherwise acquire any of the foregoing, whether or not presently convertible, exchangeable or exercisable.
(o) “Exchange
Act” means the Securities Exchange Act of 1934, as amended.
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(p) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another
Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of
the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities,
or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Stock be subject
to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either
(x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common
Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender
or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject Entities making or party to,
or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial
owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate
a stock purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off
or scheme of arrangement) with one or more Subject Entities whereby such Subject Entities, individually or in the aggregate, acquire,
either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated
as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or
party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock
such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least
50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company shall,
directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions allow any Subject
Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer,
exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization,
spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either
(x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50% of the aggregate
ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of the Subscription
Date calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate
ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient
to allow such Subject Entities to effect a statutory short form merger or other transaction requiring other stockholders of the Company
to surrender their shares of Common Stock without approval of the stockholders of the Company or (C) that the Company shall, directly
or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering
into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which
case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition
to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended
treatment of such instrument or transaction; provided that notwithstanding the foregoing the HOD Merger, shall not be deemed a Fundamental
Transaction.
(q) “GAAP”
means United States generally accepted accounting principles, consistently applied during the periods involved.
(r) “Group”
means a “group” as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder.
- 24 -
(s) “Indebtedness”
of any Person means, without duplication (i) all indebtedness for borrowed money, (ii) all obligations issued, undertaken or assumed as
the deferred purchase price of property or services, including (without limitation) “finance leases” in accordance with GAAP
(other than trade payables entered into in the ordinary course of business consistent with past practice), (iii) all reimbursement or
payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property,
assets or businesses, (v) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred
as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights
and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property),
(vi) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, is classified as a finance lease,
(vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any mortgage, deed of trust, lien, pledge, charge, security interest or other encumbrance
of any nature whatsoever in or upon any property or assets (including accounts and contract rights) with respect to any asset or property
owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such
indebtedness, and (vii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses
(i) through (vii) above.
(t) “Intellectual
Property Rights” shall have the meaning ascribed to such term in the Purchase Agreement.
(u) “Interest
Rate” means 12.0% per annum, as may be adjusted pursuant to Section 2.
(v) “Material
Adverse Effect” shall have the meaning ascribed to such term in the Purchase Agreement.
(w) “Options”
means any rights, warrants or options to subscribe for or purchase (i) shares of Common Stock or (ii) Convertible Securities.
(x) “Permitted
Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) trade payables incurred in the ordinary
course of business and consistent with past practice, (iii) unsecured Indebtedness incurred by the Company that is made expressly subordinate
in right of payment to the Indebtedness evidenced by this Note, as reflected in a written agreement acceptable to the Required Holders
and approved by the Required Holders in writing, and which Indebtedness includes terms and conditions acceptable to the Required Holders,
(iv) Indebtedness, up to $200,000, in the aggregate, secured by Permitted Liens described in clauses (iv) of the definition of Permitted
Liens, and (v) “Yorkville Indebtedness,” meaning all Indebtedness of the Company and its Subsidiaries outstanding as
of the Issuance Date owing to Yorkville pursuant to the agreements and instruments evidencing such indebtedness (collectively, the “Yorkville
Documents”), as such Yorkville Documents exist as of the Issuance Date (without giving effect to any amendment, modification,
or increase in principal thereof without the prior written consent of the Required Holders).
- 25 -
(y) “Permitted
Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business
by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation of law, such as
materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business with respect to
a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings, (iv) Liens (A) 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 (B) existing on such equipment at the time
of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of
such equipment, (v) Liens incurred in connection with the extension, renewal or refinancing of the Indebtedness secured by Liens of the
type described in clause (iv) above, provided that any extension, renewal or replacement Lien shall be limited to the property encumbered
by the existing Lien and the principal amount of the Indebtedness being extended, renewed or refinanced does not increase, (vi) leases
or subleases and licenses and sublicenses granted to others in the ordinary course of the Company’s business, not interfering in
any material respect with the business of the Company and its Subsidiaries taken as a whole, (vii) Liens in favor of customs and
revenue authorities arising as a matter of law to secure payments of custom duties in connection with the importation of goods, (viii)
Liens arising from judgments, decrees or attachments in circumstances not constituting an Event of Default under Section 4(a)(ix), (ix)
Liens granted pursuant to the Security Agreement in favor of the collateral agent for the benefit of the Holder and the holders of the
Other Notes to secure the obligations under this Note and the Other Notes, and (x) Liens granted to Yorkville in connection with the Yorkville
Indebtedness existing as of the Issuance Date, which Liens shall be senior in priority to the Liens described in clause (ix) above and
shall be released automatically upon the full repayment of all Yorkville Indebtedness.
(z) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and any governmental entity or any department or agency thereof.
(aa) “Principal
Market” means the Nasdaq Capital Market.
(bb) “Pro Rata
Amount” means a fraction (i) the numerator of which is the Subscription Amount (as defined in the Purchase Agreement) paid by
the initial Holder of this Note to the Company pursuant to the Purchase Agreement and (ii) the denominator of which is the aggregate Subscription
Amounts paid by all the Purchasers to the Company pursuant to the Purchase Agreement.
(cc) “Purchase
Agreement” means that certain securities purchase agreement dated as of the Subscription Date by and among the Company and the
investors listed on the signature pages attached thereto pursuant to which the Company issued the Notes, as may be amended, amended and
restated, supplemented or otherwise modified from time to time.
(dd) “Purchaser” shall have the meaning ascribed to such term in the Purchase Agreement.
(ee) “Redemption Dates” means, collectively, the Event of Default Redemption Dates and the Change of Control
Redemption Dates, as applicable, each of the foregoing, individually, a Redemption
Date.
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(ff) “Redemption Notices” means, collectively, the Event of Default Redemption Notices and the Change of Control
Redemption Notices, each of the foregoing, individually, a Redemption Notice.
(gg) “Redemption Prices” means, collectively, the Event of Default Redemption Prices and the Change of Control
Redemption Prices, each of the foregoing, individually, a Redemption Price.
(hh) “Registrable
Instruments” shall have the meaning ascribed to such term in the Registration Rights Agreement.
(ii) “Registration
Rights Agreement” means that certain registration rights agreement dated as of the Subscription Date by and among the Company
and the Purchasers relating to, among other things, the registration of the resale of the shares of Common Stock issuable upon conversion
of the Notes.
(jj) “Registration
Statement” shall have the meaning ascribed to such term in the Registration Rights Agreement.
(kk) “Related
Fund” means, with respect to any Person, a fund or account managed by such Person or an Affiliate of such Person.
(ll) “Required
Holders” means the holders of Notes representing at least a majority of the aggregate principal amount of the Notes then outstanding.
(mm) “SEC”
means the United States Securities and Exchange Commission.
(nn) “Securities
Act” means the Securities Act of 1933, as amended.
(oo) “Security
Agreement” means that certain security agreement dated as of the Subscription Date by and among the Company, each of its Subsidiaries
party thereto, and the collateral agent for the benefit of the Holder and the holders of the Other Notes, as may be amended, amended and
restated, supplemented or otherwise modified from time to time, pursuant to which the Company and such Subsidiaries have granted a second
priority perfected security interest in substantially all of their respective assets to secure the obligations under this Note and the
Other Notes, which security interest is contractually subordinate to the Liens securing the Yorkville Indebtedness and shall automatically
become a first priority security interest upon the full repayment of all Yorkville Indebtedness, without the need for any amendment, consent,
or further documentation.
- 27 -
(pp) “Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the principal securities
exchange or securities market on which the Common Stock is then traded as in effect on the date of delivery of the applicable Conversion
Notice.
(qq) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(rr) “Subscription
Date” means May 4, 2026.
(ss) “Subsidiary”
shall have the meaning ascribed to such term in the Purchase Agreement.
(tt) “Trading
Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal
trading market for the Common Stock on such day, then on the principal securities exchange or securities market on which the Common Stock
is then traded.
(uu) “Transaction
Documents” shall have the meaning ascribed to such term in the Purchase Agreement, which meaning shall be deemed to include
the Security Agreement.
(vv) “VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on an Eligible Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Eligible Market on which the Common Stock is then listed or quoted as reported by Bloomberg (based on a Trading Day from 9:30 a.m.
(New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted on an Eligible Market, the
volume weighted average price of the Common Stock for such date (or the nearest preceding date) in the over-the-counter market on the
electronic bulletin board for the Common Stock as reported by Bloomberg, or (c) if no volume weighted average price is reported for the
Common Stock 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 the Common Stock as reported in the Pink Open Market published by OTC Markets Group, Inc. If the VWAP cannot be calculated
for such date on any of the foregoing bases, the VWAP on such date shall be the fair market value as mutually determined by the Company
and the Holder, or if they cannot agree, as determined pursuant to Section 22.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company
has caused this Note to be duly executed as of the Issuance Date set out above.
Brag House Holdings, Inc.
By:
/s/ Lavell Juan Malloy, II
Name:
Lavell Juan Malloy, II
Title:
Chief Executive Officer
EXHIBIT I
Brag
House Holdings, Inc.
CONVERSION NOTICE
Reference is made to the Senior Secured Convertible
Note (the “Note”) issued to the undersigned by Brag House Holdings, Inc., a Delaware corporation (the “Company”).
In accordance with and pursuant to the Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of
the Note indicated below into shares of Common Stock par value $0.0001 per share (the “Common Stock”) of the Company,
as of the date specified below.
Date of Conversion:
Aggregate Conversion Amount to be converted or number of Conversion Shares to be issued upon conversion:
Please confirm the following information:
Conversion Price:
If Aggregate Conversion Amount is provided above, number of shares of Common Stock to be issued:
Please issue the Common Stock into which the Note is being converted
to the Holder, or for its benefit, as follows:
☐ Check here if requesting delivery as
a certificate to the following name and to the following address:
Issue to:
Address:
Electronic Mail:
☐ Check here if requesting delivery by
Deposit/Withdrawal at Custodian as follows:
DTC Participant:
DTC Number:
Account Number:
Authorization:
By:
Title:
Dated:
Account Number:
(if electronic book entry transfer)
Transaction Code Number:
(if electronic book entry transfer)
ACKNOWLEDGMENT
The Company hereby acknowledges
this Conversion Notice and hereby directs Pacific Stock Transfer Company to issue the above indicated number of shares of Common Stock.
Brag House Holdings, Inc.
By:
Name:
Title:
EX-10.1 — SECURITIES PURCHASE AGREEMENT, DATED MAY 4, 2026, BY AND BETWEEN BRAG HOUSE HOLDINGS, INC. AND THE PURCHASERS PARTY THERETO
EX-10.1
Filename: ea028977301ex10-1.htm · Sequence: 3
Exhibit 10.1
PURCHASE AGREEMENT
This Purchase Agreement (this
“Agreement”) is dated as of May 4, 2026, between Brag House Holdings, Inc., a Delaware corporation (the “Company”)
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively, the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act (as defined below), and Rule 506 promulgated
thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company, instruments of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings
given to such terms in the Notes (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:
“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.7.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York are generally
open for use by customers on such day.
“Closing”
means the closing of the purchase and sale of the Instruments pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Instruments, in each case, have been satisfied or waived.
“Commission”
means the United States Securities and Exchange Commission.
“Commitment
Shares” means the shares of Common Stock to be issued to the Purchasers at the Closing as a commitment fee, allocated among
the Purchasers pro rata based on each Purchaser’s Subscription Amount relative to the aggregate Subscription Amounts of all Purchasers,
in the aggregate amount of three million (3,000,000) shares of Common Stock.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company
Counsel” means Lucosky Brookman LLP, with offices located at 101 Wood Avenue South, Fifth Floor, Woodbridge, New Jersey 08830.
“Conversion
Shares” shall have the meaning ascribed to such term in the Notes.
“Data Privacy
and Security Laws” shall have the meaning ascribed to such term in Section 3.1(mm).
“Disclosure
Schedules” means those disclosure schedules being delivered by the Company to the Purchasers concurrently with the execution
of this Agreement.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day,
no later than 9:01 a.m. (New York City time) on the date hereof.
“Effective
Date” means the earliest of the date that (a) the initial Registration Statement has been declared effective by the Commission
registering all of the Underlying Shares, (b) all of the Underlying Shares have been sold pursuant to Rule 144 or may be sold pursuant
to Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 and
without volume or manner-of-sale restrictions, (c) following the one year anniversary of the Closing Date provided that a holder of the
Underlying Shares is not an Affiliate of the Company or (d) all of the Underlying Shares may be sold pursuant to an exemption from registration
under Section 4(a)(1) of the Securities Act without volume or manner-of-sale restrictions and Company Counsel has delivered to such holders
a standing written unqualified opinion that resales may then be made by such holders of the Underlying Shares pursuant to such exemption
which opinion shall be in form and substance reasonably acceptable to such holders.
2
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant
to the approval of a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee
directors established for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion
of any Instruments issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement
to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other
than in connection with stock splits or combinations) or to extend the term of such securities, (c) securities issuable pursuant to that
certain Common Stock Purchase Agreement, dated as of December 4, 2025, between the Company, House of Doge. and Yorkville, as amended,
restated or supplemented from time to time, and that certain Convertible Promissory Note, dated as of December 4, 2025, in the initial
principal amount of up to $11,000,000.00, issued by the Company and House of Doge to Yorkville, as amended, restated or supplemented from
time to time; provided, however that the amount due pursuant to such Convertible Promissory Note shall not be increased or the number
of shares issuable pursuant thereto increased, (d) securities issued in connection with the HOD Merger, and (e) securities issued pursuant
to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that such securities
are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the
filing of any registration statement in connection therewith during the prohibition period in Section 4.13(a) herein, and provided that
any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is investing in securities.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“HOD Guaranty”
means that certain Guaranty, dated as of date hereof, as amended, restated or supplemented from time to time, issued by House of Doge
in favor of the Purchasers whereby House of Doge guarantees the obligations of the Company under the Notes and the Transaction Documents.
“HOD Merger”
means that certain merger expected to occur between House of Doge and the Company.
“House
of Doge” means House of Doge Inc., a Texas corporation.
“Indebtedness”
shall have the meaning ascribed to such term in the Notes.
“Instruments”
means the Notes, the Commitment Shares and the Underlying Shares.
3
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“IT Systems”
shall have the meaning ascribed to such term in Section 3.1(mm).
“Legend
Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).
“Lien”
means any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any
of the foregoing, any conditional sale or other title retention agreement, and any lease in the nature thereof) and any option, trust
or other preferential arrangement having the practical effect of any of the foregoing.
“Lock-Up
Agreements” means the Lock-Up Agreements, dated as of the date hereof, by and between the Company and each of the directors
and officers of the Company as constituted following the HOD Merger, in the form of Exhibit D attached hereto.
“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).
“Maximum
Rate” shall have the meaning ascribed to such term in Section 5.17.
“Notes”
means the Senior Secured Convertible Notes due, subject to the terms therein, May 4, 2026, issued by the Company to the Purchasers hereunder,
in the form of Exhibit A attached hereto.
“Notice
Termination Time” shall have the meaning ascribed to such term in Section 4.12(c).
“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.12(a).
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Personal
Data” shall have the meaning ascribed to such term in Section 3.1(mm).
“Principal
Amount” means, as to each Purchaser, the amounts set forth below such Purchaser’s signature block on the signature pages
hereto next to the heading “Principal Amount,” in United States Dollars, which shall equal such Purchaser’s Subscription
Amount multiplied by 4/3.
“Pro Rata
Portion” shall have the meaning ascribed to such term in Section 4.12(e).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
4
“Processing”
shall have the meaning ascribed to such term in Section 3.1(mm).
“Public
Information Failure” shall have the meaning ascribed to such term in Section 4.3(b).
“Public
Information Failure Payments” shall have the meaning ascribed to such term in Section 4.3(b).
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.10.
“Registration
Rights Agreement” means the Registration Rights Agreement, dated on or about the date hereof, among the Company and the Purchasers,
in the form of Exhibit B attached hereto.
“Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale of the Underlying Shares by each Purchaser as provided for in the Registration Rights Agreement.
“Release
Date” means the date that is ninety (90) calendar days after the earlier of (x) such time one or more Registration Statement(s)
covering the resale of all Registrable Instruments (as defined in the Registration Rights Agreement) has been effective and available
for the re-sale of all such Registrable Instruments (for avoidance of doubt, this clause (x) shall only apply if no Registrable Instruments
are cutback from any Registration Statement) or (y) such time as all of the Registrable Instruments may be sold without restriction or
limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1).
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Required
Holders” means (I) prior to the Closing Date, each of the Purchasers and (II) on or after the Closing Date, holders of at least
a majority of the aggregate Principal Amount of Notes issued.
“Required
Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in
the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon conversion in full of all Notes (including
Underlying Shares issuable as payment of interest on the Notes), ignoring any conversion limits set forth therein.
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
5
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Selling
Stockholders” shall have the meaning ascribed to such term in the Registration Rights Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).
“Standard
Settlement Period” shall have the meaning ascribed to such term in Section 4.1(c).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Notes (and in consideration of which such Purchaser
will also receive its pro rata allocation of Commitment Shares) purchased hereunder as specified below such Purchaser’s name on
the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately
available funds.
“Subsequent
Financing” shall have the meaning ascribed to such term in Section 4.12(a).
“Subsequent
Financing Notice” shall have the meaning ascribed to such term in Section 4.12(b).
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof. “Subsidiary” of any Person shall include any corporation,
limited or general partnership, limited liability company, trust, estate, association, joint venture or other business entity (a) the
accounts of which would be consolidated with those of such Person in such Person’s consolidated financial statements if such financial
statements were prepared in accordance with GAAP or (b) of which more than 50% of (i) the outstanding equity interests having (in the
absence of contingencies) ordinary voting power to elect a majority of the board of directors of such Person, (ii) in the case of a partnership
or limited liability company, the interest in the capital or profits of such partnership or limited liability company or (iii) in the
case of a trust, estate, association, joint venture or other entity, the beneficial interest in such trust, estate, association or other
entity business is, at the time of determination, owned or controlled directly or indirectly through one or more intermediaries, by such
Person.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, the OTCQB or the OTCQX (or any successors to any of the foregoing).
“Transaction
Documents” means this Agreement, the Notes, the Security Agreement, the Registration Rights Agreement, the Lock-Up Agreements,
the HOD Guaranty and all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection with the
transactions contemplated hereunder.
6
“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place,
Woodmere, NY 11598, and any successor transfer agent of the Company.
“Underlying
Shares” means the Conversion Shares, including without limitation, shares of Common Stock issued and issuable in lieu of the
cash payment of interest on the Notes in accordance with the terms of the Notes, in each case without respect to any limitation or restriction
on the conversion of the Notes.
“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.13(b).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on the Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Required Holders then outstanding and reasonably acceptable to the Company, the fees and expenses of which
shall be paid by the Company.
“Yorkville”
means YA II PN LTD., a Cayman Islands exempt limited partnership and/or its affiliates.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase,
up to an aggregate of $2,500,000 in principal amount of the Notes ($1,875,000 funded net of original issue discount). Each Purchaser shall
deliver to the Company’s bank account specified in the Company’s wire instructions, as set forth in a letter addressed to
the Purchasers on the Company’s letterhead and executed by the Company’s Chief Financial Officer or Chief Executive Officer,
via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on
the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Note and such Purchaser’s
pro rata allocation of Commitment Shares, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the
other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections
2.2 and 2.3, the Closing shall take place remotely by electronic transfer of the Closing documentation.
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2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel, substantially in the form of Exhibit H attached hereto;
(iii) an
officer’s certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, certifying (i) the accuracy
in all material respects of the Company’s representations and warranties as of the Closing Date, (ii) the performance in all material
respects of all covenants required to be performed by the Company on or prior to the Closing Date, and (iii) the incumbency and authority
of the officers executing the Transaction Documents;
(iv) a
Note with a principal amount equal to such Purchaser’s Subscription Amount multiplied by 4/3, registered in the name of such Purchaser;
(v) a
number of shares of Common Stock equal to such Purchaser’s pro rata portion of the Commitment Shares (based on such Purchaser’s
Subscription Amount as a percentage of the aggregate Subscription Amounts of all Purchasers), registered in the name of such Purchaser;
(vi) the
Company shall have provided each Purchaser with the wire instructions of the Company, on Company letterhead and executed by the Chief
Executive Officer or Chief Financial Officer;
(vii) the
Lock-Up Agreements;
(viii) the
Registration Rights Agreement duly executed by the Company;
(ix) the
Security Agreement duly executed by the Company and House of Doge; and
(x) the
Company shall have delivered to such Purchaser such other documents relating to the transactions contemplated by this Agreement as such
Purchaser or its counsel may reasonably request.
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i)
this Agreement duly executed by such Purchaser;
(ii) such
Purchaser’s Subscription Amount by wire transfer to the account specified in writing by the Company; and
(iii) the
Registration Rights Agreement duly executed by such Purchaser.
8
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality, in all respects) on the
Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case
they shall be accurate in all material respects (or, to the extent representations or warranties are qualified by materiality, in all
respects) as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate in all material respects or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) as of such date;
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company;
(v) proof
of submission of a listing of additional shares to the Nasdaq Capital Market setting forth the terms of transaction contemplated by the
Transaction Documents;
(vi) each
Purchaser shall have completed, to its sole satisfaction, its due diligence review of the Company and its Subsidiaries, including their
respective businesses, financial condition, assets, liabilities, operations, and prospects; and
(vii)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of such Purchaser,
makes it impracticable or inadvisable to purchase the Instruments at the Closing; and the Company shall have obtained from Yorkville,
in form and substance satisfactory to the Purchasers, (A) a duly executed subordination agreement and (B) any other consent, acknowledgment,
or amendment required under the Yorkville financing documents in connection with the transactions contemplated by the Transaction Documents.
9
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules, the Company hereby makes the following representations and warranties to each Purchaser:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities. Each Subsidiary is dormant, has no assets, has immaterial liabilities for accounts payable, and
latent accrued expenses, which have not been realized and any settlement would be immaterial to the Company as a whole.
(b) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any Subsidiary is in
violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected
to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse
effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries,
taken as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition
or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions, (ii) any changes in
financial or securities markets in general, (iii) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation
or worsening thereof, (iv) any pandemic, epidemics or human health crises (including COVID-19), (v) any changes in applicable laws or
accounting rules, (vi) the announcement, pendency or completion of the transactions contemplated by the Transaction Documents, or (vii)
any action required or permitted by the Transaction Documents or any action taken (or omitted to be taken) with the written consent of
or at the written request of the Purchasers holding a majority in principal amount outstanding of the Notes).
(c) Authorization;
Enforcement.
(i) The
Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement
and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery
of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated
hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the
Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other than in connection with
the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or upon delivery will have
been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and
binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable
principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement
of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief
or other equitable remedies or (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
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(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it
is a party, the issuance and sale of the Instruments and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of
incorporation, bylaws or other organizational or charter documents, or (ii) subject to the Required Approvals, conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon
any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution
or similar adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals,
conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations),
or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.6 of this Agreement, (ii) the filing with the Commission pursuant to the Registration Rights Agreement, (iii) the notice
and/or application(s) to each applicable Trading Market for the issuance and sale of the Instruments and the listing of the Underlying
Shares for trading thereon in the time and manner required thereby, and (iv) the filing of Form D with the Commission and such filings
as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).
(f) Issuance
of the Instruments. The Instruments are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents. The Underlying Shares, when issued in accordance with the terms of
the Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Transaction Documents. The Company has reserved from its duly authorized capital stock
a number of shares of Common Stock for issuance of the Underlying Shares at least equal to the Required Minimum on the date hereof.
11
(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof.
The Company has not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant
to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees
pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic report under the Exchange Act. Except as set forth on Schedule 3.1(g)(i),
no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. Except as set forth on Schedule 3.1(g)(i), there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Instruments will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any
Person (other than the Purchasers). Except as set forth on Schedule 3.1(g)(i), there are no outstanding securities or instruments
of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or
instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities or instruments of the
Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such Subsidiary. The
Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have
been issued in compliance with all federal and state securities laws, and none of such outstanding shares was issued in violation of any
preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder,
the Board of Directors or others is required for the issuance and sale of the Instruments. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge
of the Company, between or among any of the Company’s stockholders.
(h) SEC
Reports; Financial Statements. Except as set forth on Schedule 3.1(h), the Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law
or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and
none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the
periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
12
(i) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or
that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent
or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice
and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings
made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company stock option plans. The Company does not have pending before the Commission any request for confidential treatment
of information. Except for the issuance of the Instruments contemplated by this Agreement or as set forth on Schedule 3.1(i), no
event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with
respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition,
that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed at least 1 Trading Day prior to the date that this representation is made.
(j) Litigation.
Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending
or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”). None of the Actions set forth on Schedule 3.1(j), (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or the Instruments or (ii) would, if there were an unfavorable
decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director
or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission
has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary
under the Exchange Act or the Securities Act.
(k) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships
with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected
to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement
or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued
employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any
of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign laws and
regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the
failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(l) Compliance.
Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement
or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default
or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority
or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case as would not have or reasonably be expected to result in a Material Adverse
Effect.
(m) Environmental
Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to
pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or
subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants,
contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the
environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder
(“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of
any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply would be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect.
(n) Regulatory
Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except
where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material
Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any Material Permit.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal,
state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither
delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by
them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.
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(p) Intellectual
Property. The Company and its Subsidiaries exclusively own (free and clear of all liens, encumbrances and defects) or possess a valid
license or other lawful right to use all Intellectual Property Rights necessary, used or held for use to conduct its business as presently
conducted and as presently proposed to be conducted. Each of the registrations or applications for registration of Intellectual Property
Rights (including issued patents and applications for patent) owned or licensed to the Company and its Subsidiaries is listed on Schedule
3.1(p)(i), and each item of such Intellectual Property Rights is valid and enforceable. Each of the licenses (in-bound or out-bound) of
Intellectual Property Rights or other contracts (including settlement agreements) with respect to the use, ownership or enforcement of
Intellectual Property Rights to which any of the Company and its Subsidiaries is a party is listed on Schedule 3.1(p)(ii), each such contract
is valid and enforceable, and none of the Company or its Subsidiaries and, to the knowledge of the Company and its Subsidiaries, none
of the counterparties to any such contract, is in default or breach thereunder or thereof. Except as set forth in Schedule 3.1(p)(iii),
none of the Intellectual Property Rights set forth (or required to be set forth) on Schedule 3.1(p)(i) has expired or terminated, has
been abandoned or canceled, or adjudged invalid or unenforceable or are scheduled or expected to expire or terminate or are scheduled
or expected to be abandoned or canceled, or adjudged invalid or unenforceable, within three (3) calendar months from the date of this
Agreement. The conduct of the business of the Company and its Subsidiaries does not infringe, misappropriate or otherwise violate or conflict
with the Intellectual Property Rights of others, and in the past six (6) years, no claim, action or proceeding (including in the U.S.
Patent and Trademark Office, or any corresponding non-U.S. authority, or before any other governmental authority) has been made or brought
alleging the foregoing. There is no claim, action or proceeding that has been made or brought in the past six (6) years by or against,
being threatened by or, to the knowledge of the Company and its Subsidiaries, being threatened against, the Company and its Subsidiaries
regarding Intellectual Property Rights, including any challenging the validity, enforceability, ownership, enforcement, patentability
or registrability of any Intellectual Property Rights. To the knowledge of the Company and its Subsidiaries, no third party is infringing,
misappropriating or otherwise conflicting with its Intellectual Property Rights. None of the Company or its Subsidiaries are aware of
any facts or circumstances which might give rise to any of the foregoing infringements, misappropriations or other conflicts, or claims,
actions or proceedings. Each of the Company and its Subsidiaries has taken reasonable measures to protect the secrecy, confidentiality
and value of all of its Intellectual Property Rights, as applicable, and, to its knowledge, no unauthorized disclosure of any information
comprising any Intellectual Property Rights has occurred. All present and former employees, consultants and independent contractors of
each of the Company and its Subsidiaries that have been involved in the development of any Intellectual Property Rights used in the business
of the Company and its Subsidiaries have entered into written agreements under which such Persons (A) agree to protect the trade secrets,
know-how and other confidential information of the Company and its Subsidiaries, as applicable, and (B) assign to one of the Company or
its Subsidiaries, as applicable, all right, title and interest in and to all Intellectual Property Rights created by such Person in the
course of his, her or its employment or other engagement by the Company or any of its Subsidiaries. Except as set forth on Schedule 3.1(p)(iv),
no United States federal or state agency or any other government or governmental agency, university, research institute or other similar
organization has sponsored any research by the Company and its Subsidiaries or been involved with or otherwise sponsored any development
of any Intellectual Property Rights owned or purported to be owned by or exclusively licensed to the Company or its Subsidiaries. For
purposes of this Agreement, “Intellectual Property Rights” means all intellectual property and proprietary rights,
including all (i) trademarks, trade names, service marks, service names, domain names, and other designation of origin, together with
all goodwill associated therewith, (ii) original works of authorship and copyrights, (iii) patents and patent applications, together with
all divisionals, continuations, continuations-in-part, reissues and reexaminations thereof, including all rights to file applications
for patent, (iv) trade secrets, know-how and other confidential information, (v) software, including data, databases and documentation
therefor, and (vi) inventions, licenses, approvals and governmental authorizations.
(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.
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(r) Transactions
with Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors of the Company or
any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any
transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to
or from providing for the borrowing of money from or lending of money to, or otherwise requiring payments to or from any officer, director
or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other
employee benefits, including stock option agreements under any stock option plan of the Company.
(s) Sarbanes-Oxley;
Internal Accounting Controls. Except as set forth on Schedule 3.1(s), the Company and the Subsidiaries are in compliance with
any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and
all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing
Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that:
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e))
for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed
by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in
the internal control over financial reporting (as such term is defined in the Exchange Act) that have materially affected, or is reasonably
likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(t) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiaries to any broker,
financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated
by the Transaction Documents.
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(u) Private
Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Instruments by the Company to the Purchasers as contemplated hereby.
The issuance and sale of the Instruments hereunder does not contravene the rules and regulations of the Trading Market.
(v) Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Instruments, will not be
or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company
shall conduct its business in a manner so that it will not become an “investment company” subject to registration under the
Investment Company Act of 1940, as amended.
(w) Registration
Rights. Other than each of the Purchasers, except as set forth on Schedule 3.1(w), no Person has any right to cause the Company
or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiaries.
(x) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating such registration.
The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is
or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such
Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance
with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository
Trust Company or another established clearing corporation and the Company is current in payment of the fees to the Depository Trust Company
(or such other established clearing corporation) in connection with such electronic transfer.
(y) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of
the Instruments and the Purchasers’ ownership of the Instruments.
(z) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchasers
will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by or
on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions
contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances
under which they were made and when made, not misleading. The press releases disseminated by the Company during the twelve months preceding
the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made
and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.
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(aa) No Integrated
Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, neither the Company,
nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security
or solicited any offers to buy any security, under circumstances that would cause this offering of the Instruments to be integrated with
prior offerings by the Company for purposes of (i) the Securities Act which would require the registration of any such securities under
the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the
Company are listed or designated.
(bb) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Instruments hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount
that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as
now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the
business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current
cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into
account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts
are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account
the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances
which lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one year from the Closing Date. Schedule 3.1(bb) sets forth as of the date hereof all outstanding secured and unsecured
Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
(cc) Tax Status.
Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect,
the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and
franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations
and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the
periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the
taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.
(dd) No General
Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Instruments by any
form of general solicitation or general advertising. The Company has offered the Instruments for sale only to the Purchasers and certain
other “accredited investors” within the meaning of Rule 501 under the Securities Act.
18
(ee) Foreign
Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any agent or other
Person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign
or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii)
failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the
Company is aware) which is in violation of law or (iv) violated in any material respect any provision of FCPA.
(ff) Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(ff) of the Disclosure Schedules. To the knowledge and belief of
the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii) shall express its
opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending December
31, 2026.
(gg) Seniority.
As of the Closing Date, no Indebtedness or other claim against the Company is senior to the Notes in right of payment or security, whether
with respect to interest or upon liquidation or dissolution, or otherwise, other than indebtedness secured by purchase money security
interests (which is senior only as to underlying assets covered thereby) and capital lease obligations (which is senior only as to the
property covered thereby).
(hh) No Disagreements
with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated by the Company
to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current
with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations
under any of the Transaction Documents.
(ii) Acknowledgment
Regarding Purchasers’ Purchase of Instruments. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Instruments. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
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(jj) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(g) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked
by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company,
or “derivative” securities based on securities issued by the Company or to hold the Instruments for any specified term, (ii)
past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price of
the Company’s publicly-traded securities, (iii) any Purchaser, and counter-parties in “derivative” transactions to which
any such Purchaser is a party, directly or indirectly, may presently have a “short” position in the Common Stock and (iv)
each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities
at various times during the period that the Instruments are outstanding, including, without limitation, during the periods that the value
of the Underlying Shares deliverable with respect to Instruments are being determined, and (z) such hedging activities (if any) could
reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging activities
are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the Transaction
Documents.
(kk) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale
or resale of any of the Instruments, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Instruments,
or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company.
(ll) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance with
the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the Common
Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s
stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or practice
to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public
announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.
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(mm) IT Systems;
Data Privacy and Security. The information technology and computer systems, including the software, firmware, hardware, equipment,
networks, data communication lines, interfaces, databases, storage media, websites, platforms and related systems, owned, licensed or
leased by the Company and its Subsidiaries (collectively, “IT Systems”) are sufficient in all material respects for
the conduct of each of the business of the Company and its Subsidiaries, and to the knowledge of each of the Company and its Subsidiaries,
do not contain any “viruses”, “worms”, “time-bombs”, “key-locks”, or any other devices
intentionally designed to disrupt or interfere with the operation of any of the IT Systems; and during the last two (2) years, there have
been no material failures, breakdowns, continued substandard performance or other adverse events affecting any of the IT Systems. Each
of the Company and its Subsidiaries has and maintains commercially reasonable business continuity and disaster recovery plans, procedures
and facilities appropriate for its business and has taken commercially reasonable steps to safeguard the integrity and security of IT
Systems, including all data stored therein, and to the knowledge of each of the Company and its Subsidiaries, there has been no unauthorized
access, or any intrusions or breaches, of any of the IT Systems, including any data stored therein, during the last two (2) years. Each
of the Company and its Subsidiaries is, and during the last three (3) years has been, in compliance in all material respects with all
Data Privacy and Security Laws applicable to it. Each of the Company and its Subsidiaries has maintained and posted, and complied with
the terms of, all privacy notices pursuant to Data Privacy and Security Laws. Each of the Company and its Subsidiaries has commercially
reasonable security measures in place designed to protect all Personal Data under its control or in its possession from unauthorized use,
access, modification or destruction. During the last three (3) years, none of the Company nor its Subsidiaries has suffered any breach
in security or other incident that has permitted any unauthorized access to the Personal Data under its control or possession. Each of
the Company and its Subsidiaries maintains, and has remained in compliance, in all material respects, with, a comprehensive written information
security program that includes commercially reasonable administrative, physical and technical measures intended to protect the confidentiality,
integrity, availability and security of Personal Data in is possession or under its control and IT Systems against any unauthorized control,
use, access, interruption, modification or corruption and to ensure the continued, uninterrupted and error-free operation of IT Systems.
There are no material claims, actions or proceedings against or affecting any of the Company or its Subsidiaries pending, threatened in
writing, relating to or arising under Data Privacy and Security Laws. None of the Company nor its Subsidiaries has received any written
notices from the Department of Justice, U.S. Department of Education, Federal Trade Commission, or the Attorney General of any state,
or any equivalent foreign governmental authority, relating to possible violations of Data Privacy and Security Laws. For purposes of this
Agreement, (i) “Data Privacy and Security Laws” shall mean (a) all applicable laws relating to the Processing of Personal
Data or otherwise relating to privacy, data protection, data security, cyber security, breach notification or data localization, and (b)
all published policies of the Company and its Subsidiaries relating to the Processing of Personal Data or otherwise relating to privacy,
data protection, data security, cyber security, breach notification or data localization; (ii) “Processing” shall mean
the collection, use, storage, processing, recording, distribution, transfer, import, export, protection, disposal or disclosure or other
activity regarding or operations performed on data or information (whether electronically or in any other form or medium); and (iii) “Personal
Data” shall mean any information that, alone or in combination with other information held by the Company and its Subsidiaries,
identifies or could reasonably be associated with an individual, including any individual’s name, street address, telephone number,
e-mail address, photograph, social security number, driver’s license number, passport number, customer or account number, biometrics,
IP address, geolocation data or persistent device identifier, or any other information that is otherwise considered personal information,
personal data, protected health information by applicable Data Privacy and Security Laws.
(nn) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”).
21
(oo) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(pp) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or
Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to
regulation by the Federal Reserve.
(qq) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with applicable
financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable
money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”),
and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any Subsidiary, threatened.
(rr) No Disqualification
Events. With respect to the Instruments to be offered and sold hereunder in reliance on Rule 506 under the Securities Act, none of
the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating
in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated
on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company
in any capacity at the time of sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a
“Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has
exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied,
to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Purchasers a copy of any disclosures
provided thereunder.
(ss) Other
Covered Persons. The Company is not aware of any person (other than any Issuer Covered Person) that has been or will be paid (directly
or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Instruments.
(tt) Notice
of Disqualification Events. The Company will notify the Purchasers in writing, prior to the Closing Date of (i) any Disqualification
Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating
to any Issuer Covered Person.
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(uu) Shell Company Status.
The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i)(1) of the Securities Act.
(vv) Change
of Control Provisions. Schedule 3.1(vv) sets forth a list of all agreements, that upon the occurrence of any Fundamental Transaction
(as defined in the Notes) or a Change of Control (as defined in the Notes) of the Company or any of its Subsidiaries, (i) requires the
Company, any of its Subsidiaries, any purchasers or successor entities thereof, to make any payments or (ii) cause any liabilities or
liens to arise on the Company, any of its Subsidiaries or any assets or properties of the Company or any of its Subsidiaries.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except (i) as limited
by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies or (iii) insofar as indemnification and contribution provisions may be limited by applicable
law.
(b) Own
Account. Such Purchaser understands that the Instruments are “restricted securities” and have not been registered under
the Securities Act or any applicable state securities law and is acquiring the Instruments as principal for its own account and not with
a view to or for distributing or reselling such Instruments or any part thereof in violation of the Securities Act or any applicable state
securities law, has no present intention of distributing any of such Instruments in violation of the Securities Act or any applicable
state securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the
distribution of such Instruments in violation of the Securities Act or any applicable state securities law (this representation and warranty
not limiting such Purchaser’s right to sell the Instruments pursuant to a registration statement, including, but not limited to,
the Registration Statement, or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring
the Instruments hereunder in the ordinary course of its business.
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(c) Purchaser
Status. At the time such Purchaser was offered the Instruments, it was, and as of the date hereof it is, and on each date on which
it converts any Notes it will be an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9),
(a)(12) or (a)(13) under the Securities Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Instruments,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Instruments and, at the present time, is able to afford a complete loss of such investment.
(e) General
Solicitation. Such Purchaser is not, to such Purchaser’s knowledge, purchasing the Instruments as a result of any advertisement,
article, notice or other communication regarding the Instruments published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
(f) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Instruments
and the merits and risks of investing in the Instruments; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment.
(g) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first
received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms
of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by
the portfolio manager that made the investment decision to purchase the Instruments covered by this Agreement. Other than to other Persons
party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners,
legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made
to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for
the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions
with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities of the
Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions in
the future.
The Company acknowledges and agrees that the representations
contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations
and warranties contained in this Agreement or any representations and warranties contained in any other Transaction Document or any other
document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transactions contemplated
hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty,
or preclude any actions, with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
24
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Instruments may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Instruments
other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection
with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of
counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Instruments under the
Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and
the Registration Rights Agreement and shall have the rights and obligations of a Purchaser under this Agreement and the Registration Rights
Agreement.
(b) The
Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Instruments in the following
form:
[NEITHER] THIS INSTRUMENT [NOR THE INSTRUMENTS
INTO WHICH THIS INSTRUMENT IS [EXERCISABLE] [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS INSTRUMENT [AND THE INSTRUMENTS ISSUABLE UPON [EXERCISE] [CONVERSION] OF
THIS INSTRUMENT] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL
INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
INSTRUMENTS.
The Company acknowledges
and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Instruments to a financial institution that is an “accredited investor” as defined
in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured
Instruments to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal
opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall
be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation
as a pledgee or secured party of Instruments may reasonably request in connection with a pledge or transfer of the Instruments, including,
if the Instruments are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately
amend the list of Selling Stockholders thereunder.
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(c) Certificates
evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration
statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following
any sale of such Underlying Shares pursuant to Rule 144, (iii) if such Underlying Shares are eligible for sale under Rule 144, without
the volume or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue a legal
opinion to the Transfer Agent or the Purchaser promptly after such time as such legend is no longer required under this Section 4.1(c),
and in any event within such time as to enable the Transfer Agent to remove the legend hereunder by the Legend Removal Date, if required
by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser, respectively. If all or any portion
of a Note is converted at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if
such Underlying Shares may be sold under Rule 144 without volume or manner-of-sale restrictions or if such legend is not otherwise required
under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the
Commission) then such Underlying Shares shall be issued free of all legends. The Company agrees that at such time as such legend is no
longer required under this Section 4.1(c), it will, no later than the earlier of (i) one (1) Trading Day and (ii) the number of Trading
Days comprising the Standard Settlement Period following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate
representing Underlying Shares, as applicable, issued with a restrictive legend (such date, the “Legend Removal Date”),
deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other
legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions
on transfer set forth in this Section 4. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by
the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System
as directed by such Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed
in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date of
delivery of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend.
(d) In
addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on the date such Instruments
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day
(increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend
Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to
be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Instruments so delivered to the Company by such
Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion
of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of
shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, an amount equal
to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any)
for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) over the product
of (A) such number of Underlying Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied
by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by
such Purchaser to the Company of the applicable Underlying Shares (as the case may be) and ending on the date of such delivery and payment
under this clause (ii).
(e) Each
Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Instruments
pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or
an exemption therefrom, and that if Instruments are sold pursuant to a Registration Statement, they will be sold in compliance with the
plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Instruments
as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
26
4.2 Acknowledgment
of Dilution. The Company acknowledges that the issuance of the Instruments may result in dilution of the outstanding shares of Common
Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under
the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant to the Transaction Documents,
are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of
any such dilution or any claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may
have on the ownership of the other stockholders of the Company.
4.3 Furnishing
of Information; Public Information.
(a) Until
the time that no Purchaser owns Instruments, the Company covenants to maintain the registration of the Common Stock under Section 12(b)
or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period)
all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject
to the reporting requirements of the Exchange Act.
(b) At
any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the Instruments
may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation
pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c)
or (ii) has ever been an issuer described in Rule 144 (i)(1)(i) or becomes an issuer in the future, and the Company shall fail to satisfy
any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition to such Purchaser’s
other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason
of any such delay in or reduction of its ability to sell the Instruments, an amount in cash equal to two percent (2.0%) of the aggregate
Subscription Amount of such Purchaser’s Instruments on the day of a Public Information Failure and on every thirtieth (30th)
day thereafter (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such Public Information
Failure is cured and (b) such time that such public information is no longer required for the Purchasers to transfer the Underlying Shares
pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section 4.3(b) are referred to herein as “Public
Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar
month during which such Public Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event
or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information
Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated
for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public
Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief.
4.4 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the Instruments in a manner that would require the registration
under the Securities Act of the sale of the Instruments or that would be integrated with the offer or sale of the Instruments for purposes
of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other
transaction unless shareholder approval is obtained before the closing of such subsequent transaction.
27
4.5 Conversion
Procedures. The form of Conversion Notice included in the Notes sets forth the totality of the procedures required of the Purchasers
in order to convert the Notes. Without limiting the preceding sentence, no ink-original Conversion Notice shall be required, nor shall
any medallion guarantee (or other type of guarantee or notarization) of any Conversion Notice form be required in order to convert the
Notes. No additional legal opinion, other information or instructions shall be required of the Purchasers to convert their Notes. The
Company shall honor conversions of the Notes and shall deliver Underlying Shares in accordance with the terms, conditions and time periods
set forth in the Transaction Documents.
4.6 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the
transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto,
with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents
to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the
Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, in connection with
the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between
the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates, on the one hand,
and any of the Purchasers or any of their Affiliates on the other hand, shall terminate and be of no further force or effect. The Company
understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the
Company. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement
without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with (i) any registration statement contemplated by the Registration
Rights Agreement and (ii) the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required
by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted
under this clause (b) and reasonably cooperate with such Purchaser regarding such disclosure.
4.7 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Instruments under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.8 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.6, the Company covenants and agrees that neither it, nor any other Person acting on its
behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes constitutes,
material non-public information, unless prior thereto such Purchaser shall have consented in writing to the receipt of such information
and agreed in writing with the Company to keep such information confidential. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any
of its Subsidiaries, or any of their respective officers, director, agents, employees or Affiliates delivers any material, non-public
information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not
have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates
or agents, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, employees, Affiliates or
agents, not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain subject to applicable
law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the
Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any of its Subsidiaries, or
any of their respective officers, director, agents, employees or Affiliates delivers any material, non-public information to a Purchaser
without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality
to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees or Affiliates, or a duty to the Company,
any of its Subsidiaries or any of their respective officers, directors, employees or Affiliates, not to trade on the basis of, such material,
non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice provided pursuant
to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the
Company shall simultaneously with the delivery of such notice file such notice with the Commission pursuant to a Current Report on Form
8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in
securities of the Company.
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4.9 Use
of Proceeds. Except as set forth on Schedule 4.9 attached hereto, the Company shall use the net proceeds from the sale of the
Instruments hereunder for (a) the partial repayment of existing indebtedness owed to Yorkville, (b) general working capital, and (c) other
corporate purposes approved by the Board of Directors, and shall not use such proceeds: (i) for the redemption of any Common Stock or
Common Stock Equivalents, (ii) for the settlement of any outstanding litigation or (iii) in violation of FCPA or OFAC regulations.
4.10 Indemnification
of Purchasers. Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners
or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court
costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur as a result of
or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity (including a Purchaser
Party’s status as an investor), or any of them or their respective Affiliates, by the Company or any stockholder of the Company
who is not an Affiliate of such Purchaser Party, arising out of or relating to any of the transactions contemplated by the Transaction
Documents. For the avoidance of doubt, the indemnification provided herein is intended to, and shall also cover, direct claims brought
by the Company against the Purchaser Parties; provided, however, that such indemnification shall not cover any loss, claim, damage or
liability to the extent it is finally judicially determined to be attributable to any Purchaser Party’s breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in any Transaction Document or any conduct by a Purchaser Party which
is finally judicially determined to constitute fraud, gross negligence or willful misconduct. If any Action shall be brought against any
Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the
Company in writing, and, except with respect to direct claims brought by the Company, the Company shall have the right to assume the defense
thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in
writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action
there is, in the reasonable opinion of counsel to the applicable Purchaser Party (which may be internal counsel), a material conflict
on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser
Party under this Agreement for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall
not be unreasonably withheld or delayed. In addition, if any Purchaser Party takes actions to collect amounts due under any Transaction
Documents or to enforce the provisions of any Transaction Documents, then the Company shall pay the costs incurred by such Purchaser Party
for such collection, enforcement or action, including, but not limited to, attorneys’ fees and disbursements. The indemnification
and other payment obligations required by this Section 4.10 shall be made by periodic payments of the amount thereof during the course
of the investigation, defense, collection, enforcement or action, as and when bills are received or are incurred; provided, that if any
Purchaser Party is finally judicially determined not to be entitled to indemnification or payment under this Section 4.10, such Purchaser
Party shall promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained
herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities
the Company may be subject to pursuant to law.
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4.11 Reservation
and Listing of Instruments.
(a) The
Company shall maintain a reserve of the Required Minimum from its duly authorized shares of Common Stock for issuance pursuant to the
Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.
(b) If,
on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum
on such date, then the Board of Directors shall use its reasonable efforts to amend the Company’s certificate or articles of incorporation
to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time, as soon as possible
and in any event not later than the 60th day after such date.
The Company shall, if applicable:
(i) in the time and manner required by the principal Trading Market, prepare and file with such Trading Market an additional shares listing
application covering a number of shares of Common Stock at least equal to the Required Minimum on the date of such application, (ii) take
all steps necessary to cause such shares of Common Stock to be approved for listing or quotation on such Trading Market as soon as possible
thereafter, (iii) provide to the Purchasers evidence of such listing or quotation and (iv) maintain the listing or quotation of such Common
Stock on any date at least equal to the Required Minimum on such date on such Trading Market or another Trading Market. The Company agrees
to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or another established clearing
corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing
corporation in connection with such electronic transfer.
4.12 Participation
in Future Financing.
(a) From
the date hereof until May 4, 2028, upon any, direct or indirect, offer, sale, grant of any option to purchase, or disposition of (or announcement
any offer, sale, grant of any option to purchase, or disposition of) any of its or its Subsidiaries’ equity, debt or equity equivalent
securities, including without limitation any Indebtedness, preferred stock or other instrument or security that is, at any time during
its life and under any circumstances, convertible into or exchangeable or exercisable for shares of Common Stock or Common Stock Equivalents
(any such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Financing”), each Purchaser
shall have the right to participate in up to an amount of the Subsequent Financing equal to forty percent (40%) of the Subsequent Financing
(the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing.
(b) No
later than 5:00 pm (New York City time) on the date that is at least five (5) days prior to the proposed pricing date of the Subsequent
Financing, the Company shall deliver to each Purchaser a written notice of the Company’s intention to effect a Subsequent Financing
(a “Subsequent Financing Notice”), which notice shall describe in reasonable detail the proposed terms of such Subsequent
Financing, the amount of proceeds intended to be raised thereunder, the proposed pricing date of such Subsequent Financing, and the Person
or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet and transaction documents
relating thereto as an attachment.
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(c) Any
Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by 5:00 pm (New York City time)
on the fourth (4th) day following the date on which the Subsequent Financing Notice is delivered to such Purchaser (the “Notice
Termination Time”) that such Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s
participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the
terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Purchaser as of such Notice Termination
Time, such Purchaser shall be deemed to have notified the Company that it does not elect to participate in such Subsequent Financing.
(d) If,
by the Notice Termination Time, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to
cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may
effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice.
(e) If,
by the Notice Termination Time, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more
than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as
defined below) of the Participation Maximum. “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Instruments
purchased on the Closing Date by a Purchaser participating under this Section 4.12 and (y) the sum of the aggregate Subscription Amounts
of Instruments purchased on the Closing Date by all Purchasers participating under this Section 4.12.
(f) The
Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation
set forth above in this Section 4.12, if the definitive agreement related to the initial Subsequent Financing Notice is not entered into
for any reason on the terms set forth in such Subsequent Financing Notice within five (5) days after the date of delivery of the initial
Subsequent Financing Notice.
(g) The
Company and each Purchaser agree that, if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related
to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one
or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Purchaser
shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment
to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written
consent of such Purchaser. In addition, the Company and each Purchaser agree that, in connection with a Subsequent Financing, the transaction
documents related to the Subsequent Financing shall include a requirement for the Company to issue a widely disseminated press release
by 9:30 am (New York City time) on the Trading Day of execution of the transaction documents in such Subsequent Financing (or, if the
date of execution is not a Trading Day, on the immediately following Trading Day) that discloses the material terms of the transactions
contemplated by the transaction documents in such Subsequent Financing.
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(h) Notwithstanding
anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing
to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention
to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser will not be in possession
of any material, non-public information, by 9:30 am (New York City time) on the sixth (6th) day following the date of delivery of the
Subsequent Financing Notice. If by 9:30 am (New York City time) on such sixth (6th) Trading Day, no public disclosure regarding a transaction
with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received
by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to be in possession
of any material, non-public information with respect to the Company or any of its Subsidiaries.
(i) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.
4.13 Subsequent
Equity Sales; Variable Rate Transactions.
(a) From
the date hereof until the Release Date without the consent of the Required holders, neither the Company nor any Subsidiary shall (A) directly
or indirectly, file any registration statement or any amendment or supplement thereto with the Commission other than pursuant to the Registration
Rights Agreement and registration statements on Form S-8, except as provided in the Registration Rights Agreement, (B) conduct a
Subsequent Financing, or (C) be party to any solicitations, negotiations or discussions with regard to the foregoing.
(b) From
the date hereof until the date that is ninety (90) days following such date as no Purchaser no longer holds any of the Notes, the Company
shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common
Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or
exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the shares of Common Stock
at any time after the initial issuance of such debt or equity securities or (B) with a conversion, exercise or exchange price that is
subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified
or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into,
or effects a transaction under, any agreement, including, but not limited to, an equity line of credit or an “at-the-market offering”,
whereby the Company may issue securities at a future determined price. Any Purchaser shall be entitled to obtain injunctive relief against
the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.13 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an
Exempt Issuance.
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(d) Further
to the foregoing, and for the avoidance of doubt nothing in this Agreement or in this Section 4.13 shall be deemed to prohibit any purchases
under the Common Stock Purchase Agreement, dated as of December 4, 2025, between the Company, House of Doge. and Yorkville, as amended,
restated or supplemented from time to time, or conversions under that certain Convertible Promissory Note, dated as of December 4, 2025,
in the initial principal amount of up to $11,000,000.00, issued by the Company and House of Doge to Yorkville, as amended, restated or
supplemented from time to time
4.14 Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document but excluding the reimbursement
of legal fees) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction
Documents unless the same consideration is also offered to all of the parties to such Transaction Documents. Further, the Company shall
not make any payment of principal or interest on the Notes in amounts which are disproportionate to the respective principal amounts outstanding
on the Notes at any applicable time. For clarification purposes, this provision constitutes a separate right granted to each Purchaser
by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall
not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Instruments
or otherwise.
4.15 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it,
nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales,
of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section
4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated
by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.6, such Purchaser
will maintain the confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules
(other than as disclosed to its legal and other representatives). Notwithstanding the foregoing, and notwithstanding anything contained
in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty
or covenant hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6, (ii) no
Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable
securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to
the initial press release as described in Section 4.6 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade
in the securities of the Company to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates
or agent, after the issuance of the initial press release as described in Section 4.6. Notwithstanding the foregoing, in the case of a
Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio
manager that made the investment decision to purchase the Instruments covered by this Agreement.
4.16 Form
D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Instruments as required under Regulation D and
to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to qualify the Instruments for, sale to the Purchasers at the Closing under
applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly
upon request of any Purchaser.
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4.17 Capital
Changes. Until the one year anniversary of the Effective Date, the Company shall not undertake a reverse or forward stock split or
reclassification of the Common Stock without the prior written consent of the Required Holders.
4.18 Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party to
a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to seek specific performance
of the terms of such Lock-Up Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated
on or before the fifth (5th) Trading Day following the date hereof, provided, however, that no such termination
will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. The Company shall reimburse the Purchasers or their designee(s) for all documented and evidenced costs and expenses
up to $60,000 (in addition to any other amounts paid to any Purchaser or its counsel prior to the date of this Agreement) incurred in
connection with the transactions contemplated by the Transaction Documents (including all legal fees and disbursements in connection therewith,
documentation and implementation of the transactions contemplated by the Transaction Documents and due diligence in connection therewith),
which amount may be withheld by such Purchaser from its Subscription Amount at the Closing. The Company shall be responsible for the payment
of any placement agent’s fees, financial advisory fees or broker’s commissions (other than for Persons engaged by any Purchaser)
relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold each Purchaser harmless against, any
liability, loss or expense (including, without limitation, reasonable attorney’s fees and out-of-pocket expenses) arising in connection
with any claim relating to any such payment. Except as expressly set forth in the Transaction Documents to the contrary, each party shall
pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent
fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and
any conversion or exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery
of any Instruments to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
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5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via facsimile
at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is
delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto on a day that
is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such
notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached
hereto.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Required Holders (or, prior to the Closing, the Company and each Purchaser) or, in the
case of a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification
or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted
Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser
and holder of Instruments and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other
than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or
transfers any Instruments, provided that such transferee agrees in writing to be bound, with respect to the transferred Instruments, by
the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in
Section 4.10 and this Section 5.8.
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5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the Court of Chancery of
the State of Delaware (or, if the Court of Chancery lacks subject matter jurisdiction, the Superior Court of the State of Delaware) or,
if federal jurisdiction exists, the United States District Court for the District of Delaware. Each party hereby irrevocably submits to
the exclusive jurisdiction of such courts for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law, including service pursuant
to the Delaware Code. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then,
in addition to the obligations of the Company under Section 4.10, the prevailing party in such Action or Proceeding shall be reimbursed
by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Action or Proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Instruments.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that, in the case of a rescission of a conversion of a Note, the
applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion notice concurrently
with the restoration of such Purchaser’s right to convert under such Note.
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5.14 Replacement
of Instruments. If any certificate or instrument evidencing any Instruments is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Instruments.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required
to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
5.17 Usury.
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will
resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter
in force, in connection with any Action or Proceeding that may be brought by any Purchaser in order to enforce any right or remedy under
any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed
and provided that the total liability of the Company under the Transaction Documents for payments in the nature of interest shall not
exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing,
in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest
that the Company may be obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract
rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental
action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to
the Transaction Documents from the effective date thereof forward, unless such application is precluded by applicable law. If under any
circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to any Purchaser with respect to indebtedness
evidenced by the Transaction Documents, such excess shall be applied by such Purchaser to the unpaid principal balance of any such indebtedness
or be refunded to the Company, the manner of handling such excess to be at such Purchaser’s election.
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5.18 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not
because it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained
in this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.19 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due
and payable shall have been canceled.
5.20 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
5.21 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.22 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
38
IN WITNESS WHEREOF, the parties
hereto have caused this Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Brag House Holdings, Inc.
Address for Notice:
By:
/s/ Lavell Juan Malloy, II
Email: [***]
Name:
Lavell Juan Malloy, II
Fax:
Title:
Chief Executive Officer
With a copy to (which shall not constitute notice):
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
39
[PURCHASER
SIGNATURE PAGES TO TBH PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: [***]
Signature of Authorized Signatory of Purchaser:
__________________________________
Name of Authorized Signatory: [***]
Title of Authorized Signatory: [***]
Email Address of Authorized Signatory: [***]
Address for Notice to Purchaser: [***]
Address for Delivery of Instruments to Purchaser (if not same as address
for notice):
Subscription Amount: $625,000.00
Principal Amount of Notes (4/3 x Subscription Amount): $833,333.34
Commitment Shares (pro rata allocation): 1,000,000
Beneficial Ownership Blocker for Notes ☒
4.99% or ☐ 9.99%
EIN Number: _______________________
[SIGNATURE PAGES CONTINUE]
40
[PURCHASER
SIGNATURE PAGES TO TBH PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: [***]
Signature of Authorized Signatory of Purchaser:
__________________________________
Name of Authorized Signatory: [***]
Title of Authorized Signatory: [***]
Email Address of Authorized Signatory: [***]
Address for Notice to Purchaser: [***]
Address for Delivery of Instruments to Purchaser (if not same as address
for notice):
Subscription Amount: $625,000.00
Principal Amount of Notes (4/3 x Subscription Amount): $833,333.34
Commitment Shares (pro rata allocation): 1,000,000
Beneficial
Ownership Blocker for Notes ☒ 4.99% or ☐ 9.99%
EIN Number: _______________________
[SIGNATURE PAGES CONTINUE]
41
[PURCHASER
SIGNATURE PAGES TO TBH PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
Name of Purchaser: [***]
Signature of Authorized Signatory of Purchaser:
__________________________________
Name of Authorized Signatory: [***]
Title of Authorized Signatory: [***]
Email Address of Authorized Signatory: [***]
Address for Notice to Purchaser: [***]
Address for Delivery of Instruments to Purchaser (if not same as address
for notice):
Subscription Amount: $625,000.00
Principal Amount of Notes (4/3 x Subscription Amount): $833,333.34
Commitment Shares (pro rata allocation): 1,000,000
Beneficial
Ownership Blocker for Notes ☒ 4.99% or ☐ 9.99%
EIN Number: _______________________
[SIGNATURE PAGES CONTINUE]
42
EX-10.2 — REGISTRATION RIGHTS AGREEMENT, DATED MAY 4, 2026, BY AND BETWEEN BRAG HOUSE HOLDINGS, INC. AND THE PURCHASERS PARTY THERETO
EX-10.2
Filename: ea028977301ex10-2.htm · Sequence: 4
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of May 4, 2026, between Brag House Holdings, Inc., a Delaware corporation
(the “Company”), and each of the several purchasers signatory hereto (each such purchaser, a “Purchaser”
and, collectively, the “Purchasers”).
This Agreement is made pursuant
to the Purchase Agreement, dated as of the date hereof, between the Company and each Purchaser (the “Purchase Agreement”).
The Company and each Purchaser
hereby agrees as follows:
1. Definitions.
Capitalized terms used
and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement.
As used in this Agreement, the following terms shall have the following meanings:
“Advice”
shall have the meaning set forth in Section 6(c).
“Effectiveness
Date” means, with respect to the Initial Registration Statement required to be filed hereunder, fifteen (15) days after the
Filing Date (as defined below) (or, in the event of a “limited review” by the Commission forty-five (45) days after the Filing
Date and in the event of a “full review” by the Commission sixty (60) days after the Filing Date) and with respect to any
additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the 30th calendar day following
the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “limited review”
by the Commission forty-five (45) days following the date such additional Registration Statement is required to be filed hereunder and
in the event of a “full review” by the Commission, the 60th calendar day following the date such additional Registration
Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission
that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the
Effectiveness Date as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified
if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading
Day, then the Effectiveness Date shall be the next succeeding Trading Day.
“Effectiveness
Period” shall have the meaning set forth in Section 2(a).
“Event”
shall have the meaning set forth in Section 2(d).
“Event
Date” shall have the meaning set forth in Section 2(d).
“Filing
Date” means, with respect to the Initial Registration Statement required hereunder, the earlier to occur of (a) five (5) Trading
Days following the completion of audited financials for House of Doge, Inc. through [December 31, 2025] and (b) June 30, 2026 and, with
respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the earliest practical
date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable Instruments.
Notwithstanding the foregoing, the Company agrees to use best efforts to complete the audit of the financials for House of Doge, Inc.
on or before June 15, 2026; in the event it is unable, despite best efforts, to meet this target, the Company shall promptly notify the
Holders.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Instruments.
“Indemnified
Party” shall have the meaning set forth in Section 5(c).
“Indemnifying
Party” shall have the meaning set forth in Section 5(c).
“Initial
Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.
“Losses”
shall have the meaning set forth in Section 5(a).
“Plan of
Distribution” shall have the meaning set forth in Section 2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission
pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Instruments covered by a Registration Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable
Instruments” means, as of any date of determination, (a) 100% of the shares of Common Stock then issued and issuable upon conversion
in full of the Notes (assuming on such date the Notes are converted in full without regard to any conversion limitations therein), (b)
100% of all Commitment Shares, and (c) any securities issued or then issuable upon any stock split, dividend or other distribution, recapitalization
or similar event with respect to the foregoing; provided, however, that any such Registrable Instruments shall cease to be Registrable
Instruments (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder
with respect thereto) for so long as (a) a Registration Statement with respect to the sale of such Registrable Instruments is declared
effective by the Commission under the Securities Act and such Registrable Instruments have been disposed of by the Holder in accordance
with such effective Registration Statement, (b) such Registrable Instruments have been previously sold in accordance with Rule 144, or
(c) such securities become eligible for resale without volume or manner-of-sale restrictions and without current public information pursuant
to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the
affected Holders (assuming that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend
upon which, such securities were issued or are issuable, were at no time held by any Affiliate of the Company, as reasonably determined
by the Company, upon the advice of counsel to the Company).
2
“Registration
Statement” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration
statements contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and supplements to any such
registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in any such registration statement.
“Rule 415”
means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Selling
Stockholder Questionnaire” shall have the meaning set forth in Section 3(a).
“SEC Guidance”
means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission
staff and (ii) the Securities Act.
2. Shelf
Registration.
(a) On
or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all
of the Registrable Instruments that are not then registered on an effective Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible
to register for resale the Registrable Instruments on Form S-3, in which case such registration shall be on another appropriate form in
accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by the Required Holders)
substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling
Stockholder” section attached hereto as Annex B; provided, however, that no Holder shall be required to
be named as an “underwriter” without such Holder’s express prior written consent. Subject to the terms of this Agreement,
the Company shall use its best efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under
Section 3(c)) to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no
later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective
under the Securities Act until the date that all Registrable Instruments covered by such Registration Statement (i) have been sold, thereunder
or pursuant to Rule 144, or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144 and without the requirement
for the Company to be in compliance with the current public information requirement under Rule 144, as determined by the counsel to the
Company pursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the affected Holders (the
“Effectiveness Period”). The Company shall telephonically request effectiveness of a Registration Statement as of 5:00
p.m. (New York City time) on a Trading Day. The Company shall immediately notify the Holders via e-mail of the effectiveness of a Registration
Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date
requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after
the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so
notify the Holder within one (1) Trading Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall
be deemed an Event under Section 2(d).
3
(b) Notwithstanding
the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Instruments
cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement,
the Company agrees to promptly inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the
Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Instruments permitted to be registered
by the Commission, on Form S-3 or such other form available to register for resale the Registrable Instruments as a secondary offering,
subject to the provisions of Section 2(e); with respect to filing on Form S-3 or other appropriate form, and subject to the provisions
of Section 2(d) with respect to the payment of liquidated damages; provided, however, that prior to filing such amendment,
the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable
Instruments in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
(c) Notwithstanding
any other provision of this Agreement and subject to the payment of liquidated damages pursuant to Section 2(d), if the Commission or
any SEC Guidance sets forth a limitation on the number of Registrable Instruments permitted to be registered on a particular Registration
Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the
registration of all or a greater portion of Registrable Instruments), unless otherwise directed in writing by a Holder as to its Registrable
Instruments, the number of Registrable Instruments to be registered on such Registration Statement will be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included other than Registrable Instruments;
b. Second, the Company shall reduce Registrable Instruments represented by shares of Common Stock issuable
upon conversion of the Notes (applied, in the case that some such shares may be registered, to the Holders on a pro rata basis based on
the total number of unregistered such shares held by such Holders); and
c. Third, the Company shall reduce Registrable Instruments represented by Commitment Shares (applied, in
the case that some Commitment Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Commitment
Shares held by such Holders).
In the event of a cutback hereunder,
the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s
allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its
best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants
of securities in general, one or more registration statements on Form S-3 or such other form available to register for resale those Registrable
Instruments that were not registered for resale on the Initial Registration Statement, as amended.
4
(d) If:
(i) the Initial Registration Statement does not cover all the Registrable Instruments, (ii) the Initial Registration Statement is not
filed on or prior to its Filing Date (if the Company files the Initial Registration Statement without affording the Holders the opportunity
to review and comment on the same as required by Section 3(a) herein, the Company shall be deemed to have not satisfied this clause (ii)),
or (iii) the Company fails to file with the Commission a request for acceleration of a Registration Statement in accordance with Rule
461 promulgated by the Commission pursuant to the Securities Act, within five (5) Trading Days of the date that the Company is notified
(orally or in writing, whichever is earlier) by the Commission that such Registration Statement will not be “reviewed” or
will not be subject to further review, or (iv) prior to the effective date of a Registration Statement, the Company fails to file a pre-effective
amendment and otherwise respond in writing to comments made by the Commission in respect of such Registration Statement within ten (10)
calendar days after the receipt of comments by or notice from the Commission that such amendment is required in order for such Registration
Statement to be declared effective, or (v) a Registration Statement registering for resale all of the Registrable Instruments is not declared
effective by the Commission by the Effectiveness Date of the Initial Registration Statement, or (vi) after the effective date of a Registration
Statement, such Registration Statement ceases for any reason to remain continuously effective as to all Registrable Instruments included
in such Registration Statement, or the Holders are otherwise not permitted to utilize the Prospectus therein to resell such Registrable
Instruments, for more than ten (10) consecutive calendar days or more than an aggregate of fifteen (15) calendar days (which need not
be consecutive calendar days) during any 12-month period (any such failure or breach being referred to as an “Event”,
and for purposes of clauses (i) , (ii) and (v), the date on which such Event occurs, and for purpose of clause (iii) the date on which
such five (5) Trading Day period is exceeded, and for purpose of clause (iv) the date which such ten (10) calendar day period is exceeded,
and for purpose of clause (vi) the date on which such ten (10) or fifteen (15) calendar day period, as applicable, is exceeded being referred
to as “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law,
on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by
such date) until the applicable Event is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages
and not as a penalty, equal to the product of 1.0% multiplied by the aggregate Subscription Amount paid by such Holder pursuant to the
Purchase Agreement. The parties agree that the maximum aggregate liquidated damages payable to a Holder under this Agreement shall be
12.0% of the aggregate Subscription Amount paid by such Holder pursuant to the Purchase Agreement. If the Company fails to pay any partial
liquidated damages pursuant to this Section in full within seven days after the date payable, the Company will pay interest thereon at
a rate of 18% per annum (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from
the date such partial liquidated damages are due until such amounts, plus all such interest thereon, are paid in full. The partial liquidated
damages pursuant to the terms hereof shall apply on a daily pro rata basis for any portion of a month prior to the cure of an Event.
(e) If
Form S-3 is not available for the registration of the resale of Registrable Instruments hereunder, the Company shall (i) register the
resale of the Registrable Instruments on another appropriate form and (ii) undertake to register the Registrable Instruments on Form S-3
as soon as such form is available, provided that the Company shall maintain the effectiveness of the Registration Statement then in effect
until such time as a Registration Statement on Form S-3 covering the Registrable Instruments has been declared effective by the Commission.
(f) Notwithstanding
anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any
Underwriter without the prior written consent of such Holder.
5
3. Registration
Procedures.
In connection with the Company’s
registration obligations hereunder, the Company shall:
(a) Not
less than five (5) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior to the
filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to
be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents proposed to be filed,
which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders,
and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall
be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning
of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto
to which the Holders of a majority of the Registrable Instruments shall reasonably object in good faith, provided that, the Company is
notified of such objection in writing no later than five (5) Trading Days after the Holders have been so furnished copies of a Registration
Statement or one (1) Trading Day after the Holders have been so furnished copies of any related Prospectus or amendments or supplements
thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex B
(a “Selling Stockholder Questionnaire”) on a date that is not less than two (2) Trading Days prior to the Filing Date
or by the end of the fourth (4th) Trading Day following the date on which such Holder receives draft materials in accordance
with this Section.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable
Instruments for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to
register for resale under the Securities Act all of the Registrable Instruments, (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant
to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration
Statement or any amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence
from and to the Commission relating to a Registration Statement (provided that, the Company shall excise any information contained therein
which would constitute material non-public information regarding the Company or any of its Subsidiaries), and (iv) comply in all material
respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable
Instruments covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with
the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus
as so supplemented.
6
(c) If
during the Effectiveness Period, the number of Registrable Instruments at any time exceeds the number of shares of Common Stock then registered
in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing
Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Instruments.
(d) Notify
the Holders of Registrable Instruments to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by
an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (and,
in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such
notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective
amendment to a Registration Statement is proposed to be filed, (B) when the Commission notifies the Company whether there will be a “review”
of such Registration Statement and whenever the Commission comments in writing on such Registration Statement, and (C) with respect to
a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or
any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional
information, (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement covering any or all of the Registrable Instruments or the initiation of any Proceedings
for that purpose, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Instruments for sale in any jurisdiction, or the initiation or threatening of any Proceeding
for such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in a Registration
Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to a Registration Statement,
Prospectus or other documents so that, in the case of a Registration Statement or the Prospectus, as the case may be, it will not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading, and (vi) of the occurrence or existence of any pending
corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company,
makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus; provided,
however, that in no event shall any such notice contain any information which would constitute material, non-public information
regarding the Company or any of its Subsidiaries, and the Company agrees that the Holders shall not have any duty of confidentiality to
the Company or any of its Subsidiaries and shall not have any duty to the Company or any of its Subsidiaries not to trade on the basis
of such information.
(e) Use
its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the effectiveness
of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Instruments
for sale in any jurisdiction, at the earliest practicable moment.
7
(f) Furnish
to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested
by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission, provided that any such item which is available on the EDGAR system (or
successor thereto) need not be furnished in physical form.
(g) Subject
to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by
each of the selling Holders in connection with the offering and sale of the Registrable Instruments covered by such Prospectus and any
amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h)
Prior to any resale of Registrable Instruments by a Holder, use its commercially reasonable efforts to register or qualify or cooperate
with the selling Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of
such Registrable Instruments for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during
the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions
of the Registrable Instruments covered by each Registration Statement, provided that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction
where it is not then so subject or file a general consent to service of process in any such jurisdiction.
(i) If
requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable
Instruments to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted
by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Instruments to be in such denominations and registered
in such names as any such Holder may request.
(j) Upon
the occurrence of any event contemplated by Section 3(d), as promptly as reasonably possible under the circumstances taking into account
the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure
of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement to
the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document
so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. If the Company notifies the Holders in accordance
with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus
have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of
the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(j)
to suspend the availability of a Registration Statement and Prospectus, subject to the payment of partial liquidated damages otherwise
required pursuant to Section 2(d), for a period not to exceed 60 calendar days (which need not be consecutive days) in any 12-month period.
8
(k) Otherwise
use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act and
the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement
or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing if, at
any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof,
the Holders are required to deliver a Prospectus in connection with any disposition of Registrable Instruments and take such other actions
as may be reasonably necessary to facilitate the registration of the Registrable Instruments hereunder.
(l) The
Company shall use its best efforts to maintain eligibility for use of Form S-3 (or any successor form thereto) for the registration of
the resale of Registrable Instruments.
(m) The
Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the
shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable
Instruments solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any
liquidated damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise occur solely
because of such delay shall be suspended as to such Holder only, until such information is delivered to the Company.
4. Registration
Expenses. All fees and expenses incident to the performance of, or compliance with, this Agreement by the Company shall be borne by
the Company whether or not any Registrable Instruments are sold pursuant to a Registration Statement. The fees and expenses referred to
in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees
and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the Commission,
(B) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, and (C)
in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation,
fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Instruments),
(ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Instruments), (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the
Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation
of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred
in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses
incurred in connection with the listing of the Registrable Instruments on any securities exchange as required hereunder. In no event shall
the Company be responsible for any broker or similar commissions of any Holder or, except to the extent provided for in the Transaction
Documents, any legal fees or other costs of the Holders.
9
5. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Instruments as principal as
a result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees (and any other
Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title)
of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the officers, directors, members, stockholders, partners, agents and employees (and any other Persons with a functionally
equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling Person,
to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out
of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus
or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the
case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder,
in connection with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (i) such
untrue statements or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder
expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution
of Registrable Instruments and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement,
such Prospectus or in any amendment or supplement thereto (it being understood that the Holder has approved Annex A hereto for this purpose)
or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated,
defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective
or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(c). The
Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising from or in connection with
the transactions contemplated by this Agreement of which the Company is aware. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such indemnified person and shall survive the transfer of any Registrable Instruments by
any of the Holders in accordance with Section 6(f).
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents
and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, to the extent arising out of or based solely upon: any untrue or alleged untrue statement of
a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were
made) not misleading (i) to the extent, but only to the extent, that such untrue statement or omission is contained in any information
so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement or such Prospectus or (ii)
to the extent, but only to the extent, that such information relates to such Holder’s information provided in the Selling Stockholder
Questionnaire or the proposed method of distribution of Registrable Instruments and was reviewed and expressly approved in writing by
such Holder expressly for use in a Registration Statement (it being understood that the Holder has approved Annex A hereto for this purpose),
such Prospectus or in any amendment or supplement thereto. In no event shall the liability of a selling Holder be greater in amount than
the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and
the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement or omission) received by such
Holder upon the sale of the Registrable Instruments included in the Registration Statement giving rise to such indemnification obligation.
10
(c) Conduct
of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder
(an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the
“Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection
with defense thereof, provided that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined by a
court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially
and adversely prejudiced the Indemnifying Party.
An Indemnified Party
shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing
to pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to any such Proceeding (including
any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably
believe that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the Indemnifying
Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at
the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonable
fees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shall
not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of
any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release
of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
Subject to the terms
of this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid
to the Indemnified Party, as incurred, within ten (10) Trading Days of written notice thereof to the Indemnifying Party, provided that
the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions
for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appeal
or further review) not to be entitled to indemnification hereunder.
11
(d) Contribution.
If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by,
or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’
or other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified
for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.
The parties hereto
agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or
by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding
paragraph. In no event shall the contribution obligation of a Holder of Registrable Instruments be greater in amount than the dollar amount
of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount of any
damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission)
received by it upon the sale of the Registrable Instruments giving rise to such contribution obligation.
The indemnity and
contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the Indemnified
Parties.
12
6. Miscellaneous.
(a) Remedies.
In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and each Holder agrees that
monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions
of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall
not assert or shall waive the defense that a remedy at law would be adequate.
(b) No
Piggyback on Registrations; Prohibition on Filing Other Registration Statements. Neither the Company nor any of its security holders
(other than the Holders in such capacity pursuant hereto) may include securities of the Company in any Registration Statements other than
the Registrable Instruments. The Company shall not file any other registration statements until all Registrable Instruments are registered
pursuant to a Registration Statement that is declared effective by the Commission, provided that this Section 6(b) shall not prohibit
the Company from filing amendments to registration statements filed prior to the date of this Agreement so long as no new securities are
registered on any such existing registration statements.
(c) Discontinued
Disposition. By its acquisition of Registrable Instruments, each Holder agrees that, upon receipt of a notice from the Company of
the occurrence of any event of the kind described in Section 3(d)(iii) through (vi), such Holder will forthwith discontinue disposition
of such Registrable Instruments under a Registration Statement until it is advised in writing (the “Advice”) by the
Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use its
best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company agrees and acknowledges
that any periods during which the Holder is required to discontinue the disposition of the Registrable Instruments hereunder shall be
subject to the provisions of Section 2(d).
(d) Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the
Company and the Required Holders. If a Registration Statement does not register all of the Registrable Instruments pursuant to a waiver
or amendment done in compliance with the previous sentence, then the number of Registrable Instruments to be registered for each Holder
shall be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Instruments shall
be omitted from such Registration Statement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly affect
the rights of other Holders may be given only by such Holder or Holders of all of the Registrable Instruments to which such waiver or
consent relates; provided, however, that the provisions of this sentence may not be amended, modified, or supplemented except
in accordance with the provisions of the first sentence of this Section 6(d). No consideration (other than the reimbursement of legal
fees) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless
the same consideration also is offered to all of the parties to this Agreement.
13
(e) Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth
in the Purchase Agreement.
(f) Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder
without the prior written consent of all of the Holders of the then outstanding Registrable Instruments. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as permitted under Section 5.7 of the Purchase Agreement.
(g) No
Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company
or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would
have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Neither
the Company nor any of its Subsidiaries has previously entered into any agreement granting any registration rights with respect to any
of its securities to any Person that have not been satisfied in full.
(h) Execution
and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file or any electronic signature complying with the U.S. federal ESIGN Act of
2000 (e.g., www.docusign.com), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
(i) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Purchase Agreement.
(j) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
(k) Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
14
(l) Headings.
The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(m) Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with the obligations
of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder
hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder
pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind
of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to
such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Holders
are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions.
Each Holder shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement,
and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. The use of
a single agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or
decision of any Holder, and was done solely for the convenience of the Company and not because it was required or requested to do so by
any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder,
solely, and not between the Company and the Holders collectively and not between and among Holders.
********************
(Signature
Pages Follow)
15
IN WITNESS WHEREOF, the parties
have executed this Registration Rights Agreement as of the date first written above.
BRAG HOUSE
HOLDINGS, INC.
By:
/s/
Lavell Juan Malloy, II
Name:
Lavell Juan Malloy, II
Title:
Chief Executive Officer
[SIGNATURE PAGE OF HOLDERS FOLLOWS]
[SIGNATURE
PAGE OF HOLDERS TO TBH REGISTRATION RIGHTS AGREEMENT]
Name of Holder: [***]
Signature of Authorized Signatory of Holder: __________________________
Name of Authorized Signatory: [***]
Title of Authorized Signatory: [***]
[SIGNATURE PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO TBH REGISTRATION RIGHTS AGREEMENT]
Name of Holder: [***]
Signature of Authorized Signatory of Holder: __________________________
Name of Authorized Signatory: [***]
Title of Authorized Signatory: [***]
[SIGNATURE PAGES CONTINUE]
[SIGNATURE
PAGE OF HOLDERS TO TBH REGISTRATION RIGHTS AGREEMENT]
Name of Holder: [***]
Signature of Authorized Signatory of Holder: __________________________
Name of Authorized Signatory: [***]
Title of Authorized Signatory: [***]
[SIGNATURE PAGES CONTINUE]
Annex A
Plan of Distribution
Each Selling Stockholder (the
“Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from
time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or
trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A Selling
Stockholder may use any one or more of the following methods when selling securities:
● ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
● block
trades in which the broker-dealer will attempt to sell the securities as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
● purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
● an
exchange distribution in accordance with the rules of the applicable exchange;
● in
the over-the-counter market;
● in
transactions otherwise than on these exchanges or systems or in the over-the-counter market;
● privately
negotiated transactions;
● settlement
of short sales;
● in
transactions through broker-dealers that agree with the Selling Stockholders to sell a specified
number of such securities at a stipulated price per security;
● through
the writing or settlement of options or other hedging transactions, whether through an options
exchange or otherwise;
● a
combination of any such methods of sale; or
● any
other method permitted pursuant to applicable law.
The
Selling Stockholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933,
as amended (the “Securities Act”), if available, rather than under this prospectus.
A-1
Broker-dealers
engaged by the Selling Stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The Selling Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
Selling Stockholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
The
Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company
has agreed to indemnify the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under
the Securities Act.
We
agreed to keep this prospectus effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders
without registration and without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for
the Company to be in compliance with the current public information under Rule 144 under the Securities Act or any other rule of similar
effect or (ii) all of the securities have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule
of similar effect. The resale securities will be sold only through registered or licensed brokers or dealers if required under applicable
state securities laws. In addition, in certain states, the resale securities covered hereby may not be sold unless they have been registered
or qualified for sale in the applicable state or an exemption from the registration or qualification requirement is available and is
complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the common stock for the applicable restricted period, as defined in Regulation M,
prior to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the
common stock by the Selling Stockholders or any other person. We will make copies of this prospectus available to the Selling Stockholders
and have informed them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act).
A-2
SELLING
SHAREHOLDERS
The
common stock being offered by the selling shareholders are those held by the selling shareholders or issuable to the selling shareholders
upon conversion of the notes. For additional information regarding the issuances of the commitment shares and those shares of common
stock underlying the notes, see “Private Placement of Commitment Shares and Notes” above. We are registering the commitment
shares and the shares of common stock underlying the notes in order to permit the selling shareholders to offer the shares for resale
from time to time. Except for the ownership of the commitment shares and notes, the selling shareholders have not had any material relationship
with us within the past three years.
The
table below lists the selling shareholders and other information regarding the beneficial ownership of the shares of common stock by
each of the selling shareholders. The second column lists the number of shares of common stock beneficially owned by each selling shareholder,
based on its ownership of the commitment shares and notes, as of ________, 2026, assuming conversion of the notes held by the selling
shareholders on that date, without regard to any limitations on conversions.
The
third column lists the shares of common stock being offered by this prospectus by the selling shareholders.
In
accordance with the terms of a registration rights agreement with the selling shareholders, this prospectus generally covers the resale
of the sum of (i) the maximum number of shares of common stock issuable upon conversion of the notes, determined as if the outstanding
notes were converted in full and (ii) the commitment shares, each as of the trading day immediately preceding the applicable date of
determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the
conversion of the notes. The fourth column assumes the sale of all of the shares offered by the selling shareholders pursuant to this
prospectus.
Under
the terms of the notes, a selling shareholder may not convert the notes to the extent such conversion would cause such selling shareholder,
together with its affiliates and attribution parties, to beneficially own a number of shares of common stock which would exceed 4.99%
or 9.99% (as applicable) of our then outstanding common stock following such conversion, excluding for purposes of such determination
shares of common stock issuable upon conversion of such notes which have not been converted or exercised. The number of shares in the
second and fourth columns do not reflect these limitations. The selling shareholders may sell all, some or none of their shares in this
offering. See “Plan of Distribution.”
Name of Selling Shareholder
Number of
shares of
Common Stock
Owned Prior to
Offering
Maximum
Number of
shares of
Common Stock
to be Sold
Pursuant to this
Prospectus
Number of
shares of
Common Stock
Owned After
Offering
A-3
Annex
C
BRAG
HOUSE HOLDINGS, INC.
Selling
Stockholder Notice and Questionnaire
The
undersigned beneficial owner of Commitment Shares and shares of common stock issuable upon conversion of the Notes (collectively, the
“Registrable Instruments”) of Brag House Holdings, Inc., a Delaware corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”)
a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the “Securities Act”), of the Registrable Instruments, in accordance with the terms of the
Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the
Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Certain
legal consequences arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly,
holders and beneficial owners of Registrable Instruments are advised to consult their own securities law counsel regarding the consequences
of being named or not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The
undersigned beneficial owner (the “Selling Stockholder”) of Registrable Instruments hereby elects to include the Registrable
Instruments owned by it in the Registration Statement.
C-1
The
undersigned hereby provides the following information to the Company and represents and warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
(a) Full
Legal Name of Selling Stockholder
(b) Full
Legal Name of Registered Holder (if not the same as (a) above) through which Registrable
Instruments are held:
(c) Full
Legal Name of Natural Control Person (which means a natural person who directly or indirectly
alone or with others has power to vote or dispose of the securities covered by this Questionnaire):
2. Address
for Notices to Selling Stockholder:
Telephone:
Fax:
Contact Person:
3. Broker-Dealer
Status:
(a) Are
you a broker-dealer?
Yes
☐ No ☐
(b) If
“yes” to Section 3(a), did you receive your Registrable Instruments as compensation
for investment banking services to the Company?
Yes
☐ No ☐
Note: If
“no” to Section 3(b), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration
Statement.
C-2
(c) Are
you an affiliate of a broker-dealer?
Yes
☐ No ☐
(d) If
you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable
Instruments in the ordinary course of business, and at the time of the purchase of the Registrable
Instruments to be resold, you had no agreements or understandings, directly or indirectly,
with any person to distribute the Registrable Instruments?
Yes
☐ No ☐
Note: If
“no” to Section 3(d), the Commission’s staff has indicated that you should be identified as an underwriter in the Registration
Statement.
4. Beneficial
Ownership of Instruments of the Company Owned by the Selling Stockholder.
Except
as set forth below in this Item 4, the undersigned is not the beneficial or registered owner of any securities of the Company other than
the securities issuable pursuant to the Purchase Agreement.
(a) Type
and Amount of other securities beneficially owned by the Selling Stockholder:
C-3
5. Relationships
with the Company:
Except
as set forth below, neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5%
of more of the equity securities of the undersigned) has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State
any exceptions here:
The
undersigned agrees to promptly notify the Company of any material inaccuracies or changes in the information provided herein that may
occur subsequent to the date hereof at any time while the Registration Statement remains effective; provided, that the undersigned shall
not be required to notify the Company of any changes to the number of securities held or owned by the undersigned or its affiliates.
By
signing below, the undersigned consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and
the inclusion of such information in the Registration Statement and the related prospectus and any amendments or supplements thereto.
The undersigned understands that such information will be relied upon by the Company in connection with the preparation or amendment
of the Registration Statement and the related prospectus and any amendments or supplements thereto.
IN
WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either
in person or by its duly authorized agent.
Date:
Beneficial Owner:
By:
Name:
Title:
PLEASE
EMAIL A .PDF COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE TO: [●]
C-4
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May 04, 2026
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Entity Registrant Name
Brag House Holdings, Inc.
Entity Central Index Key
0001903595
Entity Tax Identification Number
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Entity Incorporation, State or Country Code
DE
Entity Address, Address Line One
45 Park Street
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Montclair
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