Exhibit 4.1
ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY
REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iii) AND 20(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY,
THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(iii)
OF THIS NOTE.
Ault
Alliance, Inc.
10%
OID Convertible Promissory Note
| Principal Amount: $1,000,000.00 (the “Principal Amount”) |
March 12, 2024 (the “Issuance Date”) |
| Purchase Price: $900,000.00 (the “Purchase Price”) |
|
FOR VALUE RECEIVED,
Ault Alliance, Inc., a Delaware corporation (the “Company”), hereby promises to pay to the order of ________________
or its registered assigns (“Holder”) 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 Amount”) when due, whether upon
the Maturity Date, or upon acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and, to pay interest
on any outstanding Principal at the applicable rate, until the same becomes due and payable, whether upon the Maturity Date or upon acceleration,
conversion, redemption or otherwise (in each case in accordance with the terms hereof). This Convertible Note (including all convertible
notes issued in exchange, transfer or replacement hereof, this “Note”) is issued pursuant to (i) the Note Purchase
Agreement dated as of March 11, 2024 (the “Note Purchase Agreement”), by and among the Company, the Holder and the
other signatory thereto (the “Purchaser”) referred to therein, as amended from time to time, (ii) the Company’s
registration statement on Form S-3 (Commission File No. 333-260618) (the “Registration Statement”) and (iii) the Company’s
prospectus supplement dated as of March 12, 2024. Certain capitalized terms used herein are defined in Section 33.
1. PAYMENTS
OF PRINCIPAL. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal Amount,
accrued and unpaid Interest and accrued and unpaid Late Charges (as defined in Section 26(c)) on such Principal Amount and Interest. Other
than as specifically permitted by this Note, the Company may not prepay any portion of the outstanding Principal Amount, accrued and unpaid
Interest or accrued and unpaid Late Charges on the Principal Amount and Interest, if any.
2. INTEREST
RATE; DEFAULT RATE. This Note shall accrue interest at the rate of six percent (6%) per annum (“Interest”), based
upon a 365-day year. From and after the occurrence and during the continuance of any Event of Default, Interest shall accrue hereunder
at a rate of twelve percent (12.0%) per annum (the “Default Rate”). Interest and the Default Rate shall be computed
on the basis of a 365-day year, and shall be payable in arrears on the Maturity Date, or upon an Event of Default, the first Trading Day
in the calendar month following the calendar month in which the Default Rate accrues hereunder.
3. CONVERSION
OF NOTE. At any time after the SLAP has been approved by the Principal Market, this Note shall be convertible into validly issued,
fully paid and non-assessable shares of Common Stock (as defined below), 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 SLAP has been approved by the Principal Market,
the Holder shall be entitled to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into validly issued,
fully paid and non-assessable 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 down to the nearest whole share. The Company
shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses
of the Transfer Agent (as defined below)) 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 Amount of this Note to be converted, redeemed or otherwise with respect
to which this determination is being made, (B) accrued and unpaid Interest with respect to such Principal Amount, (D) accrued and unpaid
Late Charges with respect to such Principal Amount of this Note and Interest, if applicable and (E) any other unpaid amounts pursuant
to the Transaction Documents (as defined in the Note Purchase Agreement), if any.
(ii) “Conversion
Price” means, as of any Conversion Date or other date of determination, $0.35, subject to adjustment as set forth 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 deliver (whether via electronic mail or otherwise), for receipt 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 (each, a “Conversion Notice”)
to the Company. If required by Section 3(c)(iii), within two (2) Trading Days following a conversion of this Note as per the terms specified
herein, the Holder shall surrender this Note to a nationally recognized overnight delivery service for delivery to the Company (or an
indemnification undertaking with respect to this Note in the case of its loss, theft or destruction as contemplated by Section 20(b)).
On or before the first (1st) Trading Day following the date of receipt of a Conversion Notice, the Company shall transmit by electronic
mail an acknowledgment, in the form attached hereto as Exhibit II, of confirmation of receipt of such Conversion Notice and representation
as to whether such shares of Common Stock may then be resold pursuant to Rule 144 or an effective and available registration statement
(each, an “Acknowledgement”) to the Holder and the Company’s transfer agent (the “Transfer Agent”)
which Acknowledgment shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms
herein. On or before the second (2nd) Trading Day following the date on which the Company has received a Conversion Notice
(or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade initiated
on the applicable Conversion Date of such shares of Common Stock issuable pursuant to such Conversion Notice) (the “Share Delivery
Deadline”), the Company shall (1) provided that the Transfer Agent is participating in The Depository Trust Company’s
(“DTC”) Fast Automated Securities Transfer Program (“FAST”), credit such aggregate number of shares
of Common Stock to which the Holder shall be 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 (2) if the Transfer Agent is not participating in FAST, upon the
request of the Holder, issue and deliver (via reputable overnight courier) 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 pursuant
to such conversion. If this Note is physically surrendered for conversion pursuant to Section 3(c)(iii) and the outstanding Principal
Amount of this Note is greater than the Principal Amount 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 receipt of this Note and at its own expense, issue and deliver to
the Holder (or its designee) a new Note (in accordance with Section 20(d)) representing the outstanding Principal Amount not converted.
The Person or Persons entitled to receive the shares of Common Stock issuable upon conversion shall be treated for all purposes as the
record holder or holders of such shares of Common Stock on the Conversion Date. Notwithstanding anything to the contrary contained in
this Note, so long as the Registration Statement is effective, the Company shall cause the Transfer Agent to deliver unlegended shares
of Common Stock to the Holder (or its designee) in connection with any sale of Conversion Shares (as defined in the Note Purchase Agreement)
with respect to which the Holder has entered into a contract for sale, and delivered a copy of the prospectus included as part of the
Registration Statement to the extent applicable, and for which the Holder has not yet settled.
(ii) Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery
Deadline, to issue and deliver to the Holder (or its designee) a certificate for the number of shares of Common Stock to which the Holder
is entitled and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating
in FAST, to credit the balance account of the Holder or the Holder’s designee with DTC for such number of shares of Common Stock
to which the Holder is entitled upon the Holder’s conversion of this Note (as the case may be) (a “Conversion Failure”),
then, in addition to all other remedies available to the Holder, (1) the Company shall pay in cash to the Holder on each day after such
Share Delivery Deadline that the issuance of such shares of Common Stock is not timely effected an amount equal to 1% of the product of
(A) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Deadline and to which the
Holder is entitled, multiplied by (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 Deadline and (2) the Holder,
upon written notice to the Company, may void 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 voiding 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 on or prior to the Share Delivery Deadline the Company shall fail
to issue and deliver to the Holder (or its designee) a certificate and register such shares of Common Stock on the Company’s share
register or, if the Transfer Agent is participating in FAST, the Transfer Agent shall fail to credit the balance account of the Holder
or the Holder’s designee with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s
conversion hereunder, and if after such Share Delivery Deadline the Holder acquires (in an open market transaction, stock loan or otherwise)
shares of Common Stock corresponding to all or any portion of the number of shares of Common Stock issuable upon such conversion that
the Holder is entitled to receive from the Company and has not received from the Company in connection with such Conversion Failure (a
“Buy-In”), then, in addition to all other remedies available to the Holder, the Company shall, within five (5) Business
Days after receipt of the Holder’s request and in the Holder’s discretion, either: (I) pay cash to the Holder in an amount
equal to the Holder’s total purchase price (including brokerage commissions, stock loan costs and other out-of-pocket expenses,
if any) for the shares of Common Stock so acquired (including, without limitation, by any other Person in respect, or on behalf, of the
Holder) (the “Buy-In Price”), at which point the Company’s obligation to issue and deliver such certificate (and
to issue such shares of Common Stock) or credit the balance account of such Holder or such Holder’s designee, as applicable, with
DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder (as the case
may be) (and to issue such shares of Common Stock) shall terminate, or (II) promptly honor its obligation to issue and deliver to the
Holder a certificate or certificates representing such shares of Common Stock or credit the balance account of such Holder or such Holder’s
designee, as applicable, with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion
hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product
of (x) such number of shares of Common Stock multiplied by (y) the lowest Closing Sale Price of the Common Stock on any Trading Day during
the period commencing on the date of the applicable Conversion Notice and ending on the date of such issuance and payment under this clause
(II) (the “Buy-In Payment Amount”). Nothing 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 the conversion of this Note as required pursuant to the terms hereof.
(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 Note 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 Registered
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 Amount and Interest hereunder) notwithstanding notice to the contrary. A Registered Note may
be assigned, transferred or sold in whole or in part only by registration of such assignment or sale on the Register. Upon its receipt
of a written request to assign, transfer or sell all or part of any Registered Note by the holder thereof, 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 20, provided that
if the Company does not so record an assignment, transfer or sale (as the case may be) of all or part of any Registered Note within two
(2) Business Days of such a request, then the Register shall be automatically deemed updated to reflect such assignment, transfer or sale
(as the case may be). Notwithstanding anything to the contrary set forth in this Section 3, following 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 (in which event this Note shall be delivered to the Company
following conversion thereof as contemplated by Section 3(c)(i)) 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 Amount, 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) 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 Amount, 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) Disputes.
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 25.
(d) Limitations
on Conversions.
(i) Beneficial
Ownership. The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right to convert
any portion of this Note pursuant to the terms and conditions of this Note and any such conversion shall be null and void and treated
as if never made, to the extent that after giving effect to such conversion, the Holder together with the other Attribution Parties collectively
would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately
after giving effect to such conversion. 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 upon conversion of this Note with respect to which the determination
of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) conversion of the remaining,
nonconverted portion of this Note beneficially owned by the Holder or any of the other Attribution Parties and (B) 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) 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)(i). For purposes of this Section 3(d)(i), beneficial
ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding
shares of Common Stock the Holder may acquire upon the conversion of this Note without exceeding the Maximum Percentage, the Holder may
rely on the number of outstanding shares of Common Stock as reflected in (x) 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, (y) a more recent public
announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, 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)(i),
to exceed the Maximum Percentage, the Holder must 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)
Business 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 results 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 1934 Act), the number of shares
so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage
(the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, 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 (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the
Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that 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. 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
1934 Act. No prior inability to convert this Note pursuant to this paragraph shall have any effect on the applicability of the provisions
of this paragraph with respect to any subsequent determination of convertibility. 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)(i) 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)(i) 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.
(ii) Principal
Market Regulation The Company shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the
terms of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the
Company may issue upon conversion of the Note or otherwise pursuant to the terms of this Note without breaching the Company’s obligations
under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations,
including rules related to the aggregate of offerings under the Exchange Cap (as defined in the Note Purchase Agreement), except that
such limitation shall not apply in the event that the Company obtains the approval of its stockholders as required by the applicable rules
of the Principal Market for issuances of shares of Common Stock in excess of such amount.
(e) Adjustments
of the Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows:
(i) Adjustments
for Recapitalization. If at any time or from time to time there shall be a recapitalization of the Common Stock, provision shall be
made so that the Holder shall thereafter be entitled to receive upon conversion of the Note the number of shares of stock or other securities
or property of the Company or otherwise, to which a holder of Common Stock deliverable upon conversion would have been entitled on such
recapitalization. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 3(e)(i)
with respect to the rights of the Holder after the recapitalization to the end that the provisions of this Section 3(e)(i) (including,
without limitation, provisions for adjustments of the Conversion Price and the number of shares of Common Stock issuable upon conversion
of the Note) shall be applicable after that event as nearly equivalent as may be practicable.
(ii) Adjustment
for Stock Splits and Combinations. If the Company shall at any time or from time to time after the Issuance Date effect a subdivision
of the outstanding Common Stock, the Conversion Price in effect immediately before that subdivision shall be proportionately decreased
so that the number of shares of Common Stock issuable on conversion of this Note shall be increased in proportion to such increase in
the aggregate number of shares of Common Stock outstanding. If the Company shall at any time or from time to time after the Issuance Date
combine the outstanding shares of Common Stock, the Conversion Price in effect immediately before the combination shall be proportionately
increased so that the number of shares of Common Stock issuable on conversion of the Note shall be decreased in proportion to such decrease
in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at the close
of business on the date the subdivision or combination becomes effective.
4. RIGHTS
UPON EVENT OF DEFAULT.
(a) Event
of Default. Each of the following events shall constitute an “Event of Default” and each of the events in clauses
(v), (vi) and (vii) shall constitute a “Bankruptcy Event of Default”:
(i) the
effectiveness of the Registration Statement lapses for any reason (including, without limitation, the issuance of a stop order) or such
Registration Statement (or the prospectus supplement) is unavailable for the issuance of Conversion Shares, and such lapse or unavailability
continues for a period of ten (10) consecutive days or for more than an aggregate of fifteen (15) days in any 365-day period;
(ii) the
suspension from trading or the failure of the Common Stock to be trading or listed (as applicable) on an Eligible Market for a period
of seven (7) consecutive Trading Days;
(iii) the
Company’s (A) failure to cure a Conversion Failure by delivery of the required number of shares of Common Stock within five (5)
Trading Days after the applicable Conversion Date or (B) notice, written or oral, to any holder of the Note, including, without limitation,
by way of public announcement or through any of its agents, at any time, of its intention not to comply, as required, with a request for
conversion of the Note into shares of Common Stock that is requested in accordance with the provisions of the Note, other than pursuant
to Section 3(d);
(iv) the
Company’s failure to pay to the Holder any amount of Principal Amount, Interest, Late Charges or other amounts when and as due under
this Note (including, without limitation, the Company’s failure to pay any redemption payments or amounts hereunder) or any other
Transaction Document (as defined in the Note Purchase Agreement) or any other agreement, document, certificate or other instrument delivered
in connection with the transactions contemplated hereby and thereby, except, in the case of a failure to pay Interest and Late Charges
when and as due, in which case only if such failure remains uncured for a period of at least five (5) Trading Days;
(v) bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against
the Company or any Subsidiary (as defined in the Note Purchase Agreement) and, if instituted against the Company or any Subsidiary by
a third party, shall not be dismissed within thirty (30) days of their initiation;
(vi) the
commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy,
insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree, order, judgment or other similar document in respect of the Company or any Subsidiary in an involuntary
case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors,
or the execution of a composition of debts, or the occurrence of any other similar federal, state or foreign proceeding, or the admission
by it in writing of its inability to pay its debts generally as they become due, the taking of corporate action by the Company or any
Subsidiary in furtherance of any such action or the taking of any action by any Person to commence a Uniform Commercial Code foreclosure
sale or any other similar action under federal, state or foreign law;
(vii) the
entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of a voluntary
or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar
law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or insolvent, or approving
as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Company
or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order, judgment or other similar document appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree, order,
judgment or other similar document or any such other decree, order, judgment or other similar document unstayed and in effect for a period
of thirty (30) consecutive days;
(viii) other
than as specifically set forth in another clause of this Section 4(a), the Company breaches any representation or warranty, in any material
respect (other than representations or warranties subject to material adverse effect or materiality, which may not be breached in any
respect) or any 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 that is curable, only if such breach remains uncured for a period of five (5) consecutive Trading Days;
(ix) a
materially false or inaccurate certification by the Company as to whether any Event of Default has occurred;
(x) any
material breach or failure in any respect by the Company to comply with any provision of Section 15 of this Note; or
(xi) any
Material Adverse Effect (as defined in the Note Purchase Agreement) occurs.
(b) Notice
of an Event of Default; Redemption Right. Upon the occurrence of an Event of Default with respect to this Note, the Company shall
within one (1) Business Day of its discovery of such Event of Default deliver written notice thereof via electronic mail and overnight
courier (with next day delivery specified) (an “Event of Default Notice”) to the Holder. At any time after the earlier
of the Holder’s receipt of an Event of Default Notice and the Holder becoming aware of an Event of Default, the Holder may require
the Company to redeem (regardless of whether such Event of Default has been cured) 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 redeem. Each portion of this Note subject to redemption by the Company
pursuant to this Section 4(b) shall be redeemed by the Company at a price equal to the greater of (i) the product of (A) the Conversion
Amount to be redeemed multiplied by (B) the Redemption Premium or (ii) the product of (X) the Conversion Rate with respect to the Conversion
Amount in effect at such time as the Holder delivers an Event of Default Redemption Notice multiplied by (Y) the product of (1) the Redemption
Premium multiplied by (2) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date
immediately preceding such Event of Default and ending on the date the Company makes the entire payment required to be made under this
Section 4(b) (the “Event of Default Redemption Price”). Redemptions required by this Section 4(b) shall be made in
accordance with the provisions of Section 13. To the extent redemptions required by this Section 4(b) are deemed or determined by a court
of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall be deemed to be voluntary prepayments.
Notwithstanding anything to the contrary in this Section 3(e), but subject to Section 3(d), until the Event of Default Redemption Price
(together with any Late Charges thereon) is paid in full, the Conversion Amount submitted for redemption under this Section 4(b) (together
with any Late Charges thereon) may be converted, in whole or in part, by the Holder into Common Stock pursuant to the terms of this Note.
In the event of the Company’s redemption of any portion of this 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 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. Any redemption upon an Event of Default shall not constitute an election of remedies by the Holder,
and all other rights and remedies of the Holder shall be preserved.
(c) Mandatory
Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, and notwithstanding any conversion that
is then required or in process, upon any Bankruptcy Event of Default, whether occurring prior to or following the Maturity Date, the Company
shall immediately pay to the Holder an amount in cash representing (i) all outstanding Principal Amount, accrued and unpaid Interest and
accrued and unpaid Late Charges on such Principal Amount and Interest, multiplied by (ii) the Redemption Premium, in addition to any and
all other amounts due hereunder, without the requirement for any notice or demand or other action by the Holder or any other person or
entity, provided that the Holder may, in its sole discretion, waive such right to receive payment upon a Bankruptcy 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 Bankruptcy 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.
5. RIGHTS
UPON FUNDAMENTAL TRANSACTION.
(a) Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes 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 satisfactory to the Holder and approved by the Holder prior to such Fundamental
Transaction, including an agreement to deliver to the holder of the Note in exchange for such Note a security of the Successor Entity
evidenced by a written instrument substantially similar in form and substance to the Note, including, without limitation, having a principal
amount and interest rate equal to the principal amounts then outstanding and the interest rates of the Note held by such holder, having
similar conversion rights as the Note satisfactory to the Holder and (ii) the Successor Entity (including its Parent Entity) is a
publicly traded corporation whose common stock is quoted on or listed for trading on an Eligible Market. Upon the occurrence of any Fundamental
Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction,
the provisions of this Note and the other Transaction Documents referring to the “Company” shall refer instead to the Successor
Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Note
and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein. Upon consummation
of a Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation that there shall be issued upon conversion
or redemption of this Note at any time after the consummation of such Fundamental Transaction, in lieu of the shares of Common Stock (or
other securities, cash, assets or other property (except such items still issuable under Sections 6 and 17, which shall continue to be
receivable thereafter)) issuable upon the conversion or redemption of the Note prior to such Fundamental Transaction, such shares of the
publicly traded common stock (or their equivalent) of the Successor Entity (including its Parent Entity) which the Holder would have been
entitled to receive upon the happening of such Fundamental Transaction had this Note been converted immediately prior to such Fundamental
Transaction (without regard to any limitations on the conversion of this Note), as adjusted in accordance with the provisions of this
Note. Notwithstanding the foregoing, the Holder may elect, at its sole option, by delivery of written notice to the Company to waive this
Section 5(a) to permit the Fundamental Transaction without the assumption of this Note. The provisions of this Section 5 shall apply similarly
and equally to successive Fundamental Transactions and shall be applied without regard to any limitations on the conversion of this Note.
(b) Notice
of a Change of Control; Redemption Right. No sooner than twenty (20) Trading Days nor later than ten (10) Trading Days prior to the
consummation of a Change of Control (the “Change of Control Date”), 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”). At any time during the period beginning after the Holder’s receipt of a Change of Control Notice
or the Holder becoming aware of a Change of Control if a Change of Control Notice is not delivered to the Holder in accordance with the
immediately preceding sentence (as applicable) and ending on twenty (20) Trading Days after the later of (A) the date of consummation
of such Change of Control or (B) the date of receipt of such Change of Control Notice or (C) the date of the announcement of such Change
of Control, the Holder may require the Company to redeem 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 redeem. The portion of this Note subject to redemption pursuant to this Section 5 shall be redeemed by the Company
in cash at a price equal to the greatest of (i) the product of (w) the Change of Control Redemption Premium multiplied by (y) the Conversion
Amount being redeemed, or (ii) the product of (x) the Change of Control Redemption Premium multiplied by (y) the product of (A) the Conversion
Amount being redeemed multiplied by (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 the earlier to occur of (1) the consummation of the applicable Change
of Control and (2) the public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control
Redemption Notice by (II) the Conversion Price then in effect, or (iii) the product of (y) the Change of Control Redemption Premium multiplied
by (z) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration
and the aggregate cash value of any non-cash consideration per share of Common Stock to be paid to the holders of the shares of Common
Stock upon consummation of such Change of Control (any such non-cash consideration constituting publicly-traded securities shall be valued
at the highest of the Closing Sale Price of such securities as of the Trading Day immediately prior to the consummation of such Change
of Control, the Closing Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed
Change of Control and the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such
proposed Change of Control) divided by (II) the Conversion Price then in effect (the “Change of Control Redemption Price”).
Redemptions required by this Section 5 shall be made in accordance with the provisions of Section 13 and shall have priority to payments
to stockholders in connection with such 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 this 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
(together with any Late Charges thereon) is paid in full, the Conversion Amount submitted for redemption under this Section 5(b) (together
with any Late Charges thereon) may be converted, in whole or in part, by the Holder into Common Stock pursuant to Section 3. In the event
of the Company’s redemption of any portion of this 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 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. RIGHTS
UPON ISSUANCE OF PURCHASE RIGHTS AND OTHER CORPORATE EVENTS.
(a) Purchase
Rights. In addition to any adjustments pursuant to Sections 7 or 17 below, if at any time the Company grants, issues or sells any
Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to all or substantially all
of the record holders of any class of Common Stock, excluding the Excluded Transactions (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 and assuming for such purpose that the Note was
converted at the Conversion Price as of the applicable record date) 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 the extent of the Maximum Percentage
(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 the extent of any such excess) and such Purchase Right to such extent shall be held in abeyance (and, if such Purchase Right has an
expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable)
for the benefit of the Holder until such time or times, if ever, 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 held similarly in abeyance (and, if such Purchase Right
has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance,
if applicable)) to the same extent as if there had been no such limitation).
(b) Other
Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental
Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets with respect to or
in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make appropriate provision to ensure
that the Holder will thereafter have the right to receive upon conversion of this Note, at the Holder’s option (i) in addition to
the shares of Common Stock receivable upon such conversion, such securities or other assets to which the Holder would have been entitled
with respect to such shares of Common Stock had such shares of Common Stock been held by the Holder upon the consummation of such Corporate
Event (without taking into account any limitations or restrictions on the convertibility of this Note) or (ii) in lieu of the shares of
Common Stock otherwise receivable upon such conversion, such securities or other assets received by the holders of shares of Common Stock
in connection with the consummation of such Corporate Event in such amounts as the Holder would have been entitled to receive had this
Note initially been issued with conversion rights for the form of such consideration (as opposed to shares of Common Stock) at a conversion
rate for such consideration commensurate with the Conversion Rate. Provision made pursuant to the preceding sentence shall be in a form
and substance satisfactory to the Holder. The provisions of this Section 6 shall apply similarly and equally to successive Corporate Events
and shall be applied without regard to any limitations on the conversion or redemption of this Note.
7. [Intentionally
Omitted].
8. [Intentionally
Omitted].
9. [Intentionally
Omitted].
10. [Intentionally
Omitted].
11. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation (as defined in the
Note Purchase Agreement), Bylaws (as defined in the Note Purchase Agreement) 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. Without limiting the generality of the foregoing
or any other provision of this Note or the other Transaction Documents, the Company (a) shall not increase the par value of any shares
of Common Stock receivable upon conversion of this Note above the Conversion Price then in effect, and (b) shall take all such actions
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common
Stock upon the conversion of this Note.
12. RESERVATION
OF AUTHORIZED SHARES.
(a) Reservation.
So long as the Note remains outstanding, the Company shall at all times reserve at least 100% of the number of shares of Common Stock
as shall from time to time be necessary to effect the conversion of the Note then outstanding (without regard to any limitations on conversions
and assuming such Note remains outstanding until the Maturity Date) at the Conversion Price then in effect (the “Required Reserve
Amount”).
(b) Insufficient
Authorized Shares. If, notwithstanding Section 12(a), and not in limitation thereof, at any time while the Note remains 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 Note 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 Note 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 forty-five (45) 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. In the event that the Company is prohibited from issuing shares of Common Stock pursuant to the terms of this Note due
to the failure by the Company to have sufficient shares of Common Stock available out of the authorized but unissued shares of Common
Stock (such unavailable number of shares of Common Stock, the “Authorized Failure Shares”), in lieu of delivering such
Authorized Failure Shares to the Holder, the Company shall pay cash in exchange for the redemption of such portion of the Conversion Amount
convertible into such Authorized Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorized Failure
Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder
delivers the applicable Conversion Notice with respect to such Authorized Failure Shares to the Company and ending on the date of such
issuance and payment under this Section 12(a); and (ii) to the extent the Holder purchases (in an open market transaction or otherwise)
shares of Common Stock to deliver in satisfaction of a sale by the Holder of Authorized Failure Shares, any brokerage commissions and
other out-of-pocket expenses, if any, of the Holder incurred in connection therewith. Nothing contained in Section 12(a) or this Section
12(b) shall limit any obligations of the Company under any provision of the Note Purchase Agreement.
13. REDEMPTIONS.
(a) Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder in cash within five (5) Business Days after the
Company’s receipt of the Holder’s Event of Default Redemption Notice. 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 in cash
concurrently with the consummation of such Change of Control if such notice is received prior to the consummation of such Change of Control
and within five (5) Business Days after the Company’s receipt of such notice otherwise. The Company shall deliver the applicable
Company Optional Redemption Price to the Holder in cash on the applicable Company Optional Redemption Date. Notwithstanding anything herein
to the contrary, in connection with any redemption hereunder at a time the Holder is entitled to receive a cash payment under any of the
other Transaction Documents, at the option of the Holder delivered in writing to the Company, the applicable Redemption Price hereunder
shall be increased by the amount of such cash payment owed to the Holder under such other Transaction Document and, upon payment in full
or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document. 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 20(d)) representing the outstanding Principal Amount which has not been redeemed.
In the event that the Company does not pay the applicable 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 (together with any Late Charges thereon) 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 and (y) the
Company shall immediately return this Note, or issue a new Note (in accordance with Section 20(d)), to the Holder, and in each case the principal
amount of this Note or such new Note (as the case may be) shall be increased by an amount equal to the difference between (1) the applicable
Redemption Price (as the case may be, and as adjusted pursuant to this Section 13, if applicable) minus (2) the Principal Amount portion
of the Conversion Amount submitted for redemption. 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.
14. VOTING
RIGHTS. The Holder shall have no voting rights as the holder of this Note, except as required by law (including, without limitation,
Title 8 of the Delaware General Corporation Law) and as expressly provided in this Note.
15. [Intentionally
Omitted].
16. [Intentionally
Omitted].
17. [Intentionally
Omitted].
18. AMENDING
THE TERMS OF THIS NOTE. Except for Section 3(d), which may not be amended, modified or waived by the parties hereto, except to the
extent allowed by Section 3(d), the prior written consent of the Holder shall be required for any amendment, modification or waiver to
this Note. Any amendment, modification or waiver so approved shall be binding upon all existing and future holders of this Note.
19. 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.
20. 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 20(d)), registered as the Holder may request, representing
the outstanding Principal Amount being transferred by the Holder and, if less than the entire outstanding Principal Amount is being transferred,
a new Note (in accordance with Section 20(d)) to the Holder representing the outstanding Principal Amount 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 Amount represented by this Note at the time of transfer, may be less
than the Principal Amount 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 (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form 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 20(d)) representing the outstanding Principal Amount.
(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 20(d) and in principal amounts of at least $1,000) representing in
the aggregate the outstanding Principal Amount of this Note, and each such new Note will represent such outstanding Principal Amount as
is designated by the Holder at the time of such surrender.
(d) Issuance
of New Note. 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 Amount remaining outstanding
(or in the case of a new Note being issued pursuant to Section 20(a) or Section 20(c), the Principal Amount 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
Amount 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 on the Principal Amount and Interest of this Note, from the
Issuance Date.
21. 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), and 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. No failure on the part of the Holder to exercise,
and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise
by the Holder of any right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or
remedy. In addition, the exercise of any right or remedy of the Holder at law or equity or under this Note or any of the documents shall
not be deemed to be an election of Holder’s rights or remedies under such documents or at law or equity. The Company covenants to
the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth
or provided for herein with respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received
by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance
thereof). 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 specific performance and/or temporary, preliminary
and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of
proving actual damages and without posting a bond or other security. The Company shall provide all information and documentation to the
Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of
this Note (including, without limitation, compliance with Section 7).
22. 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, without limitation, 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.
23. CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed against
any such 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. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine,
feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include”
and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Note instead of just the provision in which
they are found. Unless expressly indicated otherwise, all section references are to sections of this Note. Terms used in this Note and
not otherwise defined herein, but defined in the other Transaction Documents, shall have the meanings ascribed to such terms on the Closing
Date in such other Transaction Documents unless otherwise consented to in writing by the Holder.
24. 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. Notwithstanding the foregoing, nothing contained in this Section 24 shall permit any waiver of any
provision of Section 3(d).
25. [Intentionally
Omitted].
26. NOTICES;
CURRENCY; 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 9(f) of the Note 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 will give written notice to the Holder at least ten (10) 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 Common Stock, (B) with respect to any grant, 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.
(b) Currency.
All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts owing under
this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar
equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation
to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange rate as published in the Wall
Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to,
or over, a period of time, the date of calculation shall be the final date of such period of time).
(c) Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, unless otherwise expressly set forth herein,
such payment shall be made in lawful money of the United States of America by a certified 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 the Purchaser, shall initially be as set forth in the Note Purchase Agreement), provided that the Holder may elect to receive
a payment of cash via wire transfer of immediately available funds by providing the Company with prior written notice setting out such
request and the Holder’s wire transfer instructions. 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
Amount 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%) per annum from the date such
amount was due until the same is paid in full (“Late Charge”).
27. CANCELLATION.
After all Principal Amount, accrued Interest, Late Charges and other amounts at any time owed on this Note have been paid in full, this
Note shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.
28. WAIVER
OF NOTICE. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other
demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Note Purchase
Agreement.
29. GOVERNING
LAW. This Note shall be 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 New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Except as otherwise required by Section 25 above, the Company hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan,
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. 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 to limit in any way any right to serve process in any manner permitted
by law. Nothing contained herein (i) 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 or to enforce a judgment or
other court ruling in favor of the Holder or (ii) shall limit, or shall be deemed or construed to limit, any provision of Section 25.
THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT 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.
30. JUDGMENT
CURRENCY.
(a) If
for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert
into any other currency (such other currency being hereinafter in this Section 30 referred to as the “Judgment Currency”)
an amount due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately
preceding:
(i) the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or
(ii) the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 30(a)(ii) being hereinafter referred to as the “Judgment Conversion Date”).
(b) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 30(a)(ii) above, there is a change in the Exchange
Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay
such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(c) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Note.
31. 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 parties 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 parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties 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).
32. MAXIMUM
PAYMENTS. Without limiting Section 9(d) of the Note Purchase Agreement, nothing contained herein shall be deemed to establish or require
the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of
interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum
shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.
33. CERTAIN
DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:
(a) “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(b) “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control
with, such Person, it being understood for purposes of this definition that “control” of a Person means the power directly
or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors of such Person or direct
or cause the direction of the management and policies of such Person whether by contract or otherwise.
(c) “Attribution
Parties” means, collectively, the following Persons and entities: (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
Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and the other
Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the foregoing is to subject collectively
the Holder and all other Attribution Parties to the Maximum Percentage, for each Conversion Notice tendered to the Company.
(d) “Bloomberg”
means Bloomberg, L.P.
(e) “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 generally are open for use by customers on such day.
(f) “Change
of Control” means any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect, wholly-owned
Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification of the shares of
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, in all material respects, the holders 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 (iii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction
of incorporation of the Company or any of its Subsidiaries.
(g) “Change
of Control Redemption Premium” means 125%.
(h) “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 Note Purchase or trading market for such security, the last closing bid price or last
trade price, respectively, of such security on the principal Note Purchase 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 in The Pink Open Market (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 in accordance with the procedures in Section 25. All such determinations
shall be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions
during such period.
(i) “Closing
Date” shall have the meaning set forth in the Note Purchase Agreement, which date is the date the Company initially issued the
Note pursuant to the terms of the Note Purchase Agreement.
(j) “Common
Stock” shall have the meaning set forth in the Note Purchase Agreement.
(k) “Convertible
Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares
of Common Stock.
(l) “Eligible
Market” means The New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market
or the Principal Market.
(m) “Excluded
Transactions” means the dividend or other distribution of the equity interests of any direct or indirect Subsidiary of the Company
and any corporate restructurings, reorganizations and other transactions completed in connection with the foregoing.
(n) “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 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock
or share 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 all 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 1934 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 1934 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 date of this Note 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) 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.
(o) “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.
(p) “Maturity
Date” shall mean (i) June 12, 2024, provided, however, that the Company shall have the right, upon written notice to the Holder,
to extend the Maturity Date to September 12, 2024, for which the Company shall increase the Principal Amount of the Note then outstanding
by five percent (5%).
(q) “Options”
means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.
(r) “Parent
Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person and whose common stock or equivalent
equity security is quoted or listed on an Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent
Entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.
(s) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity or a government or any department or agency thereof.
(t) “Principal
Market” means the NYSE American.
(u) “Redemption
Notices” means, collectively, the Event of Default Redemption Notices, the Company Optional Redemption Notices and the Change
of Control Redemption Notices, and each of the foregoing, individually, a “Redemption Notice.”
(v) “Redemption
Premium” means 125%.
(w) “Redemption
Prices” means, collectively, Event of Default Redemption Prices, the Change of Control Redemption Prices and the Company Optional
Redemption Prices, and each of the foregoing, individually, a “Redemption Price.”
(x) “SEC”
means the United States Securities and Exchange Commission or the successor thereto.
(y) “SLAP”
shall have the meaning set forth in the Note Purchase Agreement.
(z) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.
(aa) “Subsidiaries”
shall have the meaning set forth in the Note Purchase Agreement.
(bb) “Successor
Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by, resulting from or surviving any Fundamental
Transaction or the Person (or, if so elected by the Holder, the Parent Entity) with which such Fundamental Transaction shall have been
entered into.
(cc) “Trading
Day” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, 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, then on the principal Note Purchase or securities market on which the Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours
or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange
or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00
p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations
other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor thereto)
is open for trading of securities.
34. DISCLOSURE.
Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) 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, non-public
information relating to the Company or any of its Subsidiaries, the Company shall on or prior to 9:00 am, New York city time on the Business
Day immediately following such notice delivery date, publicly disclose such material, non-public information on a Current Report on Form
8-K or otherwise. In the event that the Company believes that a notice contains material, non-public information relating to the Company
or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing in such notice (or immediately upon receipt
of notice from the Holder, as applicable), and in the absence of any such written indication in such notice (or notification from the
Company immediately upon receipt of notice from the Holder), the Holder shall be entitled to presume that information contained in the
notice does not constitute material, non-public information relating to the Company or any of its Subsidiaries. Nothing contained in this
Section 34 shall limit any obligations of the Company, or any rights of the Holder, under Section 4(i) of the Note Purchase Agreement.
35. ABSENCE
OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company
and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain
from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an
officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed,
written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company, may
possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information
to any third party.
[signature page follows]
IN WITNESS WHEREOF, the Company
has caused this Note to be duly executed as of the Issuance Date set out above.
| |
AULT ALLIANCE, INC.
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By: |
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Name: William B. Horne |
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Title: Chief Executive Officer |
EXHIBIT
I
AULT ALLIANCE, INC.
CONVERSION NOTICE
Reference is made to the Convertible
Note (the “Note”) issued to the undersigned by Ault Alliance, 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, no par value per share (the “Common Stock”), of the Company,
as of the date specified below. Capitalized terms not defined herein shall have the meaning as set forth in the Note.
| Aggregate Principal Amount to be converted: |
|
| |
|
| Aggregate accrued and unpaid Interest and accrued and unpaid Late Charges with respect to such portion of the Aggregate Principal Amount and such Aggregate Interest to be converted: |
|
| |
|
AGGREGATE CONVERSION AMOUNT
TO BE CONVERTED: |
|
| |
|
| Please confirm the following information: |
| Number of shares of Common Stock to be issued: |
|
|
Please issue the Common Stock into which the Note
is being converted to Holder, or for its benefit, as follows:
¨ Check
here if requesting delivery as a certificate to the following name and to the following address: |
| ¨ Check
here if requesting delivery by Deposit/Withdrawal at Custodian as follows: |
| DTC Participant: |
|
| |
|
| DTC Number: |
|
| |
|
| Account Number: |
|
| Date: |
|
|
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| Name of Registered Holder |
|
Exhibit II
ACKNOWLEDGMENT
The Company hereby (a) acknowledges
this Conversion Notice dated ________________, (b) certifies that the above indicated number of shares of Common Stock are eligible to
be resold by the Holder and (c) hereby directs _________________ to issue the above indicated number of shares of Common Stock in accordance
with the Transfer Agent Instructions dated _____________, 20__ from the Company and acknowledged and agreed to by ________________________.
| |
AULT ALLIANCE, INC. |
| |
|
| |
|
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By: |
|
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Name: William B. Horne |
| |
Title: Chief Executive Officer |
Exhibit 10.1
NOTE PURCHASE AGREEMENT
This NOTE PURCHASE AGREEMENT
(the “Agreement”), dated as of March 11, 2024 (the “Effective Date”), is by and among Ault Alliance,
Inc., a Delaware corporation with offices located at 11411 Southern Highlands Parkway, Suite 240, Las Vegas, NV 89141 (the “Company”),
and each purchaser identified on the signature page hereto (each, including its successors and assigns, the “Purchaser”
and collectively, the “Purchasers”).
RECITALS
WHEREAS, subject to
the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities
Act”), the Company desires to issue and sell to the Purchasers, and each of the Purchasers, severally and not jointly, desires
to purchase from the Company, a 10% OID Convertible Promissory Note in the principal face amount of $1,000,000, substantially in the form
attached hereto as Exhibit A (the “Note”).
WHEREAS, the Note shall
be convertible into shares of the Company’s shares of Class A common stock, $0.001 par value per share, and any other class of securities
into which such securities may hereafter be reclassified or changed (the “Common Stock,” with the shares of Common
Stock issuable pursuant to the terms of the Note, including, without limitation, upon conversion or otherwise, being collectively referred
to herein as the “Conversion Shares” and together with the Note, the “Securities”), in accordance
with the terms of the Note.
The Company and each Purchaser
is executing and delivering this Agreement with respect to the Securities in reliance upon the effective registration statement on Form
S-3 (SEC File No. 333-260618) (as amended, the “Registration Statement”) filed by the Company with the United States
Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act, and the rules and regulations promulgated
thereunder (collectively, the “Securities Act”), for the registration of the Securities, as such Registration Statement
may be amended and supplemented from time to time (including pursuant to Rule 462(b) of the Securities Act), including all documents filed
as part thereof or incorporated by reference therein, and including all information deemed to be a part thereof at the time of effectiveness
pursuant to Rule 430B of the Securities Act, and the prospectus supplement (the “Prospectus Supplement”) complying
with Rule 424(b) of the Securities Act that is delivered by the Company to each Purchaser in connection with the execution and delivery
of this Agreement, including the documents incorporated by reference therein, and that is filed with the SEC.
DEFINITIONS
In addition to the terms defined
elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth below:
“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 except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or other governmental action to close.
“Closing”
shall have the meaning ascribed to such term in Section 1(a).
“Closing Date”
shall mean the Trading Day on which the Closing is held, and shall mean the Trading Day on which all of the Transaction Documents have
been executed and delivered by the applicable parties thereto related to such Closing Date, and all conditions precedent to (i) the Purchaser’s
obligations to pay the Purchase Price at such Closing and (ii) the Company’s obligations to deliver the Securities to be issued
and sold at such Closing, in each case, have been satisfied or waived.
“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.
“Conversion Price”
shall have the meaning ascribed to such term in the Note.
“Conversion Shares”
means the shares of Common Stock issuable upon conversion of the Note.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exchange Cap”
shall mean that number of shares of Common Stock or Common Stock Equivalents pursuant to this Agreement and the other Transaction Documents
to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued as well as permitted
to vote pursuant to this Agreement and such Transaction Documents would not exceed 19.99% of the Company’s outstanding shares of
Common Stock as of the date hereof.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“Governmental Entity”
means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal, state, local,
municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental agency,
branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body exercising, or
entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature
or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public international
organization or any of the foregoing
“Knowledge”
means, with respect to any Person, (x) such Person is actually aware of such fact or matter or (y) such Person should reasonably have
been expected to discover or otherwise become aware of such fact or matter after reasonable investigation, and for purposes hereof it
shall be assumed that such Person has conducted a reasonable investigation of the accuracy of the representations and warranties set forth
herein.
“Lien”
means any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional
sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected,
voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any
of the foregoing in the future.
“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.
“Principal Market”
shall mean the NYSE American, LLC.
“Principal Market
Rules” means the rules and regulations of the Principal Market.
“Rule 144”
means Rule 144 promulgated by the SEC 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 SEC having substantially the same purpose and effect as such Rule.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Termination Date”
shall have the meaning ascribed to such term in Section 1(a).
“Trading Day”
means a day on which the Principal Market is open for trading; provided, that in the event that the Common Stock is not listed or quoted
for trading on a Trading Market on the date in question, then Trading Day shall mean a Business Day.
“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, OTCQB,
OTCQX, or the OTC Pink (or any successors to any of the foregoing). Notwithstanding the foregoing, term “Trading Market” shall
only include the OTC Pink for any interim period of time required upon the Company’s delisting from any other Trading Market provided
that the Company shall be required to list its Common Stock for trading or quotation on another Trading Market (excluding the OTC Pink)
promptly upon such delisting and the failure to do so shall constitute a default under the terms of this Agreement and the other Transaction
Documents.
“Transaction”
shall have the meaning ascribed to such term in the Preamble.
“Transaction Documents”
means this Agreement all exhibits and schedules thereto and hereto, the Note, the Transfer Agent Instruction Letter in the form attached
hereto as Exhibit B and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means Computershare, N.A., and any successor transfer agent of the Company or, if the Company has not appointed a Transfer Agent, the
Company.
“Transfer Agent Instruction
Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent to reserve the Conversion
Shares pursuant to the Transaction Documents.
AGREEMENT
NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and each Purchaser hereby agree as follows:
1. PURCHASE
AND SALE.
(a) Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser agrees
to purchase, the Notes for the Purchase Price (such purchase and sale being a “Closing”). At the Closing, the Purchase
Price shall consist solely of cash in immediately available funds. Contemporaneously with or promptly following the Closing, each Purchaser
shall deliver to the Company the Purchaser’s Purchase Price as set forth on the signature page hereto executed by the Purchaser
and the Company shall, on the Closing Date, deliver to the Purchaser the Note purchased by the Purchaser at the Closing. The Company and
each Purchaser shall also deliver the other items set forth in Section 1(b) and 1(c), respectively, deliverable at the Closing. Upon satisfaction
of the covenants and conditions set forth herein and receipt of the Purchase Price by the Company, the Closing shall occur at the principal
offices of the Company or such other location as the parties shall mutually agree.
(b) Company
Deliverables. 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) the
Note;
(iii) the
Transfer Agent Instruction Letter (in the form reasonably acceptable to, and approved by, the Purchasers and the Transfer Agent);
(iv) a
Certificate of Good Standing of the Company from its jurisdictions of incorporation dated no later than two Business Days prior to the
Closing Date;
(v) a
certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, (the “Officer’s Certificate”)
attesting that each and every representation and warranty of the Company shall be true and correct in all material respects as of the
date when made and as of the applicable Closing Date as though originally made at that time (except for representations and warranties
that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and
complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by
the Company at or prior to the applicable Closing Date, including, without limitation the issuance of all Securities on the Closing Date
as required by the Transaction Documents and the Company has a sufficient number of duly authorized shares of preferred stock and Common
Stock reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents; and
(vi) all
documents, instruments and other writings required to be delivered by the Company to each Purchaser on or before the applicable Closing
Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated hereby.
(c) Purchaser
Deliverables. 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 the Purchaser; and
(ii) the
Purchase Price by wire transfer to the account specified by the Company on Schedule 1 hereto.
(d) Purchase Price.
The purchase price for each Purchaser’s Note (the “Purchase Price”) shall be $900,000.
2. PURCHASER’S
REPRESENTATIONS AND WARRANTIES.
Each Purchaser, severally
and not jointly, represents and warrants to the Company that, as of the date hereof and as of the Closing Date:
(a) Organization;
Authority. The Purchaser is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of
its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction
Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.
(b) No
Public Sale or Distribution. The Purchaser (i) is acquiring the Note and (ii) upon conversion of the
Note will acquire the Conversion Shares issuable upon conversion thereof, in each case, for its own account and not with a view towards,
or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant
to sales registered or exempted under the Securities Act; provided, however, by making the representations herein, such Purchaser does
not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the
right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption from registration
under the Securities Act. Such Purchaser does not presently have any agreement or understanding, directly or indirectly, with any Person
to distribute any of the Securities in violation of applicable securities laws.
(c) [Intentionally
Omitted]
(d) [Intentionally
Omitted]
(e) Information.
The Purchaser and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Securities that have been requested by each Purchaser. The Purchaser and its
advisors, if any, have had (i) the opportunity to review the Transaction Documents and the SEC Reports (as defined below) and has been
afforded the opportunity to ask such questions of the Company 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 Securities and the merits and risks of investing in the Securities;
(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. Neither such inquiries nor any other due diligence investigations conducted by each Purchaser or its advisors,
if any, or its representatives shall modify, amend or affect each Purchaser’s right to rely on the Company’s representations
and warranties contained herein. The Purchaser understands that its investment in the Securities involves a high degree of risk. The Purchaser
acknowledges that it can bear the economic risk and complete loss of its investment in the Securities and has such knowledge and experience
in financial or business matters that it is capable of evaluating the merits and risks of the investment contemplated hereby. The Purchaser
did not learn of the investment in the Securities as a result of any general solicitation or general advertising. The Purchaser has sought
such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition
of the Securities. The Purchaser is not relying upon, and has not relied upon, any statement, representation or warranty made by any person,
except for statements, representations and warranties contained in this Agreement, in making its investment or decision to invest in the
Company.
(f) No
Governmental Review. The Purchaser understands that no United States federal or state agency or any
other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability
of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(g) [Intentionally
Omitted]
(h) Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of
each Purchaser and shall constitute the legal, valid and binding obligations of each Purchaser enforceable against each Purchaser in accordance
with its terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’
rights and remedies.
(i) No
Conflicts. The execution, delivery and performance by each Purchaser of this Agreement and the consummation
by each Purchaser of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of each Purchaser,
or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
each Purchaser is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and
state securities laws) applicable to each Purchaser, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
ability of each Purchaser to perform its obligations hereunder.
3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
The Company represents and
warrants to each Purchaser that, as of the date hereof and as of the Closing Date:
(a) Organization
and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and
validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority
to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company
and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which
its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that
the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below).
As used in this Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business, properties,
assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company and its Subsidiaries,
taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other agreements or instruments
to be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or any of its Subsidiaries to
perform any of their respective obligations under any of the Transaction Documents. Other than the Persons set forth on Schedule 3(a),
the Company has no Subsidiaries. “Subsidiaries” means any Person in which the Company, directly or indirectly, (I)
owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (II) controls or operates all or any
part of the business, operations or administration of such Person, and each of the foregoing, is individually referred to herein as a
“Subsidiary.”
(b) Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its
obligations under this Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and
thereof. The execution and delivery of this Agreement and the other Transaction Documents by the Company, and the consummation by the
Company of the transactions contemplated hereby (including, without limitation, the issuance of the Note and the reservation for issuance
and issuance of the Conversion Shares issuable upon conversion of the Note) have been duly authorized by the Company’s Board of
Directors and (other than (i) any filings as may be required by any state securities agencies or pursuant to the securities regulations,
and (ii) the filing of a Supplemental Listing Application (“SLAP”) with, and approval by, the Principal Market of the
SLAP, which Conversion Shares shall not, as of the Effective Date, exceed the Exchange Cap (clauses (i)
and (ii) are collectively referred to as the “Required Filings”) no further filing, consent or authorization
is required by the Company, its Board of Directors or stockholders or other governing body. This Agreement has been, and the other Transaction
Documents to which it is a party will, prior to the Closing, have been, duly executed and delivered by the Company, and each constitutes
the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, except
as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and
except as rights to indemnification and to contribution may be limited by federal or state securities law.
(c) Issuance
of Securities. The issuance of the Securities is duly authorized and when issued and delivered in accordance
with the terms of the Transaction Documents, shall be validly issued, fully paid and non-assessable and free from all Liens with respect
to the issuance thereof. As of the Closing Date, the Company shall have reserved from its duly authorized capital stock not less than
100% of the maximum number of Conversion Shares issuable upon conversion of the Note (without taking into account any limitations on the
conversion of the Note set forth therein). Upon conversion in accordance with the Note, the Conversion Shares, when issued, will be validly
issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the
holders being entitled to all rights accorded to a holder of Common Stock.
(d) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Note,
the Conversion Shares and the reservation for issuance of the Conversion Shares) will not (i) result in a violation of the Certificate
of Incorporation as amended and as in effect on the date hereof (including, without limitation, any certificate of designation contained
therein, the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as in effect on the date
hereof (the “Bylaws”) or other organizational documents of the Company, or any capital stock or other securities of
the Company, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default)
in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture
or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation,
order, judgment or decree (including, without limitation, foreign, federal and state securities laws and regulations and the rules and
regulations of the Principal Market and including all applicable foreign, federal and state laws, rules and regulations) applicable to
the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected
assuming, with respect to clauses (ii) and (iii) above, the making of the Required Filings
and except in the case of clauses (ii) and (iii) above, for such breaches, violations or conflicts as would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(e) Consents.
Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration
with (other than the Required Filings), any Governmental Entity (as defined below) or any regulatory or self-regulatory agency or any
other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction
Documents, in each case, in accordance with the terms hereof or thereof. Other than the Required Filings, all consents, authorizations,
orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence have been or will be obtained
or effected on or prior to the Closing Date, and the Company is not aware of any facts or circumstances which might prevent the Company
from obtaining or effecting any of the registration, application or filings contemplated by the Transaction Documents. Except as set forth
in the reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to
the reporting requirements of the Exchange Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included
therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred
to as the “SEC Reports”), the Company is not in violation of the requirements of the Principal Market and has no knowledge
of any facts or circumstances which could reasonably lead to delisting or suspension of the Common Stock in the foreseeable future.
(f) Acknowledgment
Regarding Purchaser’s Purchase of Securities. The Company acknowledges and agrees that each Purchaser
is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
hereby and thereby and that each Purchaser is not (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate”
(as defined in Rule 144 promulgated under the Securities Act (or a successor rule thereto) of the Company or any of its Subsidiaries or
(iii) to its knowledge, a “beneficial owner” of more than 10% of the shares of Common Stock (as defined for purposes of Rule
13d-3 of the Exchange Act). The Company further acknowledges that each Purchaser is not acting as a financial advisor or fiduciary of
the Company with respect to the Transaction Documents and the transactions contemplated hereby, and any advice given by each Purchaser
or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby
is merely incidental to each Purchaser’s purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.
(g) No
General Solicitation; Placement Agent’s Fees. The Company shall be responsible for the payment
of any placement agent’s fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Purchaser
or its investment advisor) 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, attorney’s fees and out-of-pocket expenses) arising
in connection with any such claim. Neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection
with the offer or sale of the Securities.
(h) [Intentionally
Omitted]
(i) Dilutive
Effect. The Company understands and acknowledges that the number of Conversion Shares will increase
in certain circumstances. The Company further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of
the Note in accordance with this Agreement and the Note is absolute and unconditional regardless of the dilutive effect that such issuance
may have on the ownership interests of other stockholders of the Company.
(j) Application
of Takeover Protections; Rights Agreement. The Company and its Board of Directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill
(including, without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover provision
under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its incorporation
or otherwise which is or could become applicable to each Purchaser as a result of the transactions contemplated by this Agreement, including,
without limitation, the Company’s issuance of the Securities and each Purchaser’s ownership of the Securities. The Company
and its Board of Directors have taken all necessary action, if any, in order to render inapplicable any stockholder rights plan or similar
arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a change in control of the Company or any of
its Subsidiaries.
(k) SEC
Reports; Financial Statements. Except as set forth on Schedule 3(k), during the one (1) year
prior to the date hereof, the Company has timely filed all SEC Reports. The Company has delivered or has made available to each Purchaser
or its representatives true, correct and complete copies of each of the SEC Reports not available on the EDGAR system. As of their respective
dates, the SEC Reports complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the
SEC promulgated thereunder applicable to the SEC Reports, and none of the SEC Reports, at the time they were filed with the SEC, 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. As of their respective dates, the
financial statements of the Company included in the SEC Reports complied in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements
have been prepared in accordance with GAAP, consistently applied, during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company
as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). The reserves, if
any, established by the Company or the lack of reserves, if applicable, are reasonable based upon facts and circumstances known by the
Company on the date hereof and there are no loss contingencies that are required to be accrued by the Statement of Financial Accounting
Standard No. 5 of the Financial Accounting Standards Board which are not provided for by the Company in its financial statements or otherwise.
No other information provided by or on behalf of the Company to each Purchaser which is not included in the SEC Reports contains any untrue
statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in
the light of the circumstance under which they are or were made. The Company is not currently contemplating amending or restating any
of the financial statements (including, without limitation, any notes or any letter of the independent accountants of the Company with
respect thereto) included in the SEC Reports (the “Financial Statements”), nor is the Company currently aware of facts
or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of
the Financials Statements to be in compliance with GAAP and the rules and regulations of the SEC. The Company has not been informed by
its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any
need for the Company to amend or restate any of the Financial Statements.
(l) Absence
of Certain Changes. Other than as disclosed in the SEC Reports, since the date of the Company’s
most recent audited financial statements contained in a Form 10-K, there has been no material adverse change and no material adverse development
in the business, assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects
of the Company or any of its Subsidiaries. Except as disclosed in the SEC Reports, since the date of the Company’s most recent audited
financial statements contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends,
(ii) sold any assets, individually or in the aggregate, outside of the ordinary course of business or (iii) made any capital expenditures,
individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken
any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation
or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend
to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The
Company and its Subsidiaries, on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated
hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3(l), “Insolvent”
means, with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Company’s
and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total indebtedness,
(B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe that they will incur debts
that would be beyond their ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries has engaged in any business
or in any transaction, and is not about to engage in any business or in any transaction, for which the Company’s or such Subsidiary’s
remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted.
(m) No
Undisclosed Events, Liabilities, Developments or Circumstances. Except as set forth on Schedule 3(m),
no event, liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect to the
Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations (including results
thereof) or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under applicable securities
laws on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by the Company of its Common Stock and
which has not been publicly announced, (ii) could have a material adverse effect on each Purchaser’s investment hereunder or (iii)
could have a Material Adverse Effect.
(n) Conduct
of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of
any term of or in default under its Certificate of Incorporation, any certificate of designation, preferences or rights of any other outstanding
series of preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation,
memorandum of association, articles of association, articles of incorporation or bylaws, respectively. Neither the Company nor any of
its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company
or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing,
except in all cases for possible violations which could not, individually or in the aggregate, have a Material Adverse Effect. Without
limiting the generality of the foregoing, except as set forth on Schedule 3(n), the Company is not in violation of any of the rules,
regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting
or suspension of the Common Stock by the Principal Market in the foreseeable future. During the two years prior to the date hereof, (i)
the Common Stock has been listed or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been suspended
by the SEC or the Principal Market and (iii) except as set forth in the SEC Reports, the Company has received no communication, written
or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal Market. The
Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities
necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would
not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any
notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit. There is no agreement,
commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of
its Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business
practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries or the conduct
of business by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or in the aggregate,
which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries.
(o) Foreign
Corrupt Practices. Neither the Company nor any director, officer, agent, employee, nor any other person
acting for or on behalf of the Company (individually and collectively, a “Company Affiliate”) have violated the FCPA
or any other applicable anti-bribery or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized
the payment of any money, or offered, given, promised to give, or authorized the giving of anything of value, to any officer, employee
or any other person acting in an official capacity for any Governmental Entity to any political party or official thereof or to any candidate
for political office (individually and collectively, a “Government Official”) or to any person under circumstances
where such Company Affiliate knew or was aware of a high probability that all or a portion of such money or thing of value would be offered,
given or promised, directly or indirectly, to any Government Official, for the purpose of:
(i) (A)
influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do
or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official
to influence or affect any act or decision of any Governmental Entity, or
(ii) assisting
the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.
(p) Sarbanes-Oxley
Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the
Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.
(q) Transactions
With Affiliates. Since January 1, 2022, except as disclosed in the SEC Reports, no current or former
employee, partner, director, officer or stockholder (direct or indirect) of the Company or its Subsidiaries, or any associate, or, to
the knowledge of the Company, any affiliate of any thereof, or any relative with a relationship no more remote than first cousin of any
of the foregoing, is presently, or has been, (i) a party to any transaction with the Company or its Subsidiaries (including any contract,
agreement or other arrangement providing for the furnishing of services by, or rental of real or personal property from, or otherwise
requiring payments to, any such director, officer or stockholder or such associate or affiliate or relative Subsidiaries (other than for
ordinary course services as employees, officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct or indirect
owner of an interest in any corporation, firm, association or business organization which is a competitor, supplier or customer of the
Company or its Subsidiaries (except for a passive investment (direct or indirect) in less than 5% of the common stock of a company whose
securities are traded on or quoted through an Eligible Market (as hereinafter defined)), nor does any such Person receive income from
any source other than the Company or its Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly
accrue to the Company or its Subsidiaries. No employee, officer, stockholder or director of the Company or any of its Subsidiaries or
member of his or her immediate family is indebted to the Company or its Subsidiaries, as the case may be, nor is the Company or any of
its Subsidiaries indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary
for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee
benefits made generally available to all employees or executives (including stock option agreements outstanding under any stock option
plan approved by the Board of Directors of the Company).
(r) Equity
Capitalization.
(i) Definitions:
(A) “Class
B Common Stock” means (x) the Company’s shares of Class B common stock, $0.001 par value per share, and (y) any capital
stock into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.
(B) “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.001 par value per share, the terms of which may be designated
by the Board of Directors of the Company in a certificate of designations and (y) any capital stock into which such preferred stock shall
have been changed or any share capital resulting from a reclassification of such preferred stock (other than a conversion of such preferred
stock into Common Stock in accordance with the terms of such certificate of designations).
(ii) Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) 500,000,000 shares
of Common Stock, of which, 29,616,911 are issued and outstanding and 213,358,847 shares are reserved for issuance pursuant to Convertible
Securities (as defined below) (other than the Notes) exercisable or exchangeable for, or convertible into, shares of Common Stock, (B)
25,000,000 shares of Class B Common Stock, of which, none is issued and outstanding and none is reserved for issuance pursuant to Convertible
Securities exercisable or exchangeable for, or convertible into, shares of Class B Common Stock, and (C) (I) 1,000,000 shares of Series
A Cumulative Redeemable Preferred Stock, 7,040 of which are issued and outstanding, (II) 50,000 shares of Series C Convertible Preferred
Stock, 41,500 of which are issued and outstanding, (III) 2,000,000 shares of Series D Cumulative Redeemable Perpetual Preferred Stock,
425,197 of which are issued and outstanding, and (IV) 21,950,000 shares of undesignated Preferred Stock, none of which is issued and outstanding.
No shares of Common Stock are held in the treasury of the Company. “Convertible Securities” means any capital stock
or other security of the Company that is at any time and under any circumstances directly or indirectly convertible into, exercisable
or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including,
without limitation, Common Stock).
(iii) Valid
Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance will be,
validly issued and are fully paid and nonassessable. Schedule 3(r)(iii) sets forth the number of shares of Common Stock that are
(A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Note) and (B) that are, as of the date
hereof, owned by Persons who are “affiliates” (as defined in Rule 405 of the Securities Act and calculated based on the assumption
that only officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates”
without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of
its Subsidiaries. To the Company’s Knowledge, other than as set forth on Schedule 3(r)(iii), no Person beneficially owns
10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible
Securities (as defined below), whether or not presently exercisable or convertible, have been fully exercised or converted (as
the case may be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without
conceding that such identified Person is a 10% stockholder for purposes of federal securities laws).
(iv) Existing
Securities; Obligations. Except as disclosed in the SEC Reports: (A) none of the Company’s shares, interests or capital stock
is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the Company; (B) there are no outstanding
options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company, or contracts, commitments,
understandings or arrangements by which the Company is or may become bound to issue additional shares, interests or capital stock of the
Company or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the Company; (C) there are no
agreements or arrangements under which the Company is obligated to register the sale of any of their securities under the Securities Act;
(D) there are no outstanding securities or instruments of the Company which contain any redemption or similar provisions, and there are
no contracts, commitments, understandings or arrangements by which the Company is or may become bound to redeem a security of the Company;
(E) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the
Securities; and (F) the Company has no stock appreciation rights or “phantom stock” plans or agreements or any similar plan
or agreement.
(v) Organizational
Documents. The Company has furnished to each Purchaser true, correct and complete copies of the Company’s Certificate of Incorporation
and the Company’s Bylaws, and the terms of all Convertible Securities and the material rights of the holders thereof in respect
thereto.
(s) [Intentionally
Omitted]
(t) Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public board,
other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting
the Company, the Common Stock or any of the Company’s officers or directors, whether of a civil or criminal nature or otherwise,
in their capacities as such, except as set forth in Schedule 3(t). No director, officer or employee of the Company or any of its
subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation of litigation. Without limitation
of the foregoing, there has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by
the SEC involving the Company or any current or former director or officer of the Company. The SEC has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act. After
reasonable inquiry of its employees, the Company is not aware of any fact which might result in or form the basis for any such action,
suit, arbitration, investigation, inquiry or other proceeding. Except as set forth in the SEC Reports, the Company is not subject to any
order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.
(u) Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries
are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for, and neither the
Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect.
(v) [Intentionally
Omitted]
(w) Title.
(i) Real
Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property, facilities or other
interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”) owned by the
Company or any of its Subsidiaries (as applicable). Except as set forth in the SEC Reports, the Real Property is free and clear of all
Liens and is not subject to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature
except for (a) Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present
or anticipated use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries are held
by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.
(ii) Fixtures
and Equipment. Each of the Company and its Subsidiaries (as applicable) has good title to, or a valid leasehold interest in, the tangible
personal property, equipment, improvements, fixtures, and other personal property and appurtenances that are used by the Company or its
Subsidiary in connection with the conduct of its business (the “Fixtures and Equipment”). The Fixtures and Equipment
are structurally sound, are in good operating condition and repair, are adequate for the uses to which they are being put, are not in
need of maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient for the conduct of the Company’s
and/or its Subsidiaries’ businesses (as applicable) in the manner as conducted prior to the Closing.
(x) [Intentionally
Omitted]
(y) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth in the SEC Reports.
(z) Subsidiary
Rights. Other than as disclosed on Schedule 3(z), the Company or one of its Subsidiaries has
the unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends and distributions on, all
capital securities of its Subsidiaries as owned by the Company or such Subsidiary.
(aa) Tax Status.
The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being
contested in good faith and (iii) has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent
to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due
by the taxing authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such claim.
The Company is not operated in such a manner as to qualify as a passive foreign investment company, as defined in Section 1297 of the
Internal Revenue Code of 1986, as amended (the “Code”). The net operating loss carryforwards (“NOLs”)
for United States federal income tax purposes of the consolidated group of which the Company is the common parent, if any, shall not
be adversely effected by the transactions contemplated hereby. The transactions contemplated hereby do not constitute an “ownership
change” within the meaning of Section 382 of the Code, thereby preserving the Company’s ability to utilize such NOLs.
(bb) Internal Accounting
and Disclosure Controls. The Company and each of its Subsidiaries maintains internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the Exchange Act) that is effective to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, including 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 and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with
management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with
the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. Except as
set forth in the SEC Reports, the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under
the Exchange Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files
or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and
forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required to be disclosed
by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely
decisions regarding required disclosure. Neither the Company nor any of its Subsidiaries has received any notice or correspondence from
any accountant, Governmental Entity or other Person relating to any potential material weakness or significant deficiency in any part
of the internal controls over financial reporting of the Company or any of its Subsidiaries.
(cc) Off Balance Sheet
Arrangements. There is no transaction, arrangement, or other relationship between the Company or any
of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its Exchange
Act filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.
(dd) Investment Company
Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment
company,” an affiliate of an “investment company,” a company controlled by an “investment company” or an
“affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”
as such terms are defined in the Investment Company Act of 1940, as amended.
(ee) Acknowledgement Regarding
Purchaser’s Trading Activity. It is understood and acknowledged by the Company that (i) following
the public disclosure of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof, each Purchaser
has not been asked by the Company or any of its Subsidiaries to agree, nor has any Purchaser agreed with the Company or any of its Subsidiaries,
to desist from effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long and/or short)
any securities of the Company, or “derivative” securities based on securities issued by the Company or to hold any of the
Securities for any specified term; (ii) each Purchaser, and counterparties in “derivative” transactions to which each Purchaser
is a party, directly or indirectly, presently may have a “short” position in the Common Stock which was established prior
to each Purchaser’s knowledge of the transactions contemplated by the Transaction Documents; (iii) each Purchaser shall not be
deemed to have any affiliation with or control over any arm’s length counterparty in any “derivative” transaction;
and (iv) each Purchaser may rely on the Company’s obligation to timely deliver shares of Common Stock upon conversion of the Securities
as and when required pursuant to the Transaction Documents for purposes of effecting trading in the Common Stock of the Company. The
Company further understands and acknowledges that following the public disclosure of the transactions contemplated by the Transaction
Documents pursuant to the Press Release (as defined below) each Purchaser may engage in hedging and/or trading activities (including,
without limitation, the location and/or reservation of borrowable shares of Common Stock) at various times during the period that the
Securities are outstanding, including, without limitation, during the periods that the value and/or number of the Conversion Shares deliverable
with respect to the Securities are being determined and such hedging and/or trading activities (including, without limitation, the location
and/or reservation of borrowable shares of Common Stock), if any, can reduce the value of the existing stockholders’ equity interest
in the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that such
aforementioned hedging and/or trading activities do not constitute a breach of this Agreement, the Note, or any other Transaction Document
or any of the documents executed in connection herewith or therewith.
(ff) Manipulation of
Price. Neither the Company nor any of its Subsidiaries has, and, to the Knowledge of the Company, no
Person acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities,
(ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities, (iii) paid or agreed to pay
to any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries or (iv)
paid or agreed to pay any Person for research services with respect to any securities of the Company or any of its Subsidiaries.
(gg) U.S. Real Property
Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long
as any of the Securities are held by each Purchaser, shall become, a U.S. real property holding corporation within the meaning of Section 897
of the Code, and the Company and each Subsidiary shall so certify upon each Purchaser’s request.
(hh) [Intentionally Omitted]
(ii) Transfer
Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which
are required to be paid in connection with the issuance, sale and transfer of the Securities to be sold to each Purchaser hereunder will
be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied
with.
(jj) Bank Holding Company
Act. Neither the Company nor any of its Subsidiaries is subject to 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 (25%) 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.
(kk) [Intentionally Omitted]
(ll) Illegal or Unauthorized
Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the best
of the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees,
agents or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company
or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or
gift of money, property, or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person or (ii)
to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal political
contributions not involving the direct or indirect use of funds of the Company or any of its Subsidiaries.
(mm) Money Laundering.
The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001 and all other applicable
U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws, regulations and Executive Orders
and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i) Executive Order 13224
of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.
(nn) Management.
Except as set forth in the SEC Reports, during the past five year period, no current or former officer or director or, to the Knowledge
of the Company, no current ten percent (10%) or greater stockholder of the Company or any of its Subsidiaries has been the subject of:
(i) a
petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal agent or
similar officer for such Person, or any partnership in which such person was a general partner at or within two years before the filing
of such petition or such appointment, or any corporation or business association of which such person was an executive officer at or within
two years before the time of the filing of such petition or such appointment;
(ii) a
conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do not relate
to driving while intoxicated or driving under the influence);
(iii) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily
enjoining any such person from, or otherwise limiting, the following activities:
(1) Acting
as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction
merchant, any other person regulated by the United States Commodity Futures Trading SEC or an associated person of any of the foregoing,
or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment
company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with
such activity;
(2) Engaging
in any particular type of business practice; or
(3) Engaging
in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of securities
laws or commodities laws;
(iv) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise limiting
for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph, or to be
associated with persons engaged in any such activity;
(v) a
finding by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities law, regulation
or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently reversed, suspended
or vacated; or
(vi) a
finding by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading SEC to have violated any federal commodities
law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or vacated.
(oo) Stock Option Plans(b) .
Each stock option granted by the Company was granted (i) in accordance with the terms of the applicable stock option plan of the Company
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 policy or practice of the Company 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.
(pp) No Disagreements with
Accountants and Lawyers(c) . There are no material 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. In addition, on or prior to the date hereof, the Company
had discussions with its accountants about its financial statements previously filed with the SEC. Based on those discussions, the Company
has no reason to believe that it will need to restate any such financial statements or any part thereof.
(qq) Other Covered Persons(d) .
The Company is not aware of any Person that has been or will be paid (directly or indirectly) remuneration for solicitation of each Purchaser
or potential purchasers in connection with the sale of the Securities.
(rr) Public Utility
Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or
an “affiliate” of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.
(ss) Federal Power Act.
None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility” under the Federal Power Act,
as amended.
(tt) Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided each Purchaser or its agents or counsel with
any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company
or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents.
The Company understands and confirms that each Purchaser will rely on the foregoing representations in effecting transactions in securities
of the Company. All disclosures provided to each Purchaser regarding the Company and its Subsidiaries, their businesses and the transactions
contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries 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, 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 2.
(uu) Compliance with Registration
Requirements. The Registration Statement has become effective under the Securities Act. The Company has complied, to the SEC’s
satisfaction with all requests of the SEC for additional or supplemental information, if any. No stop order suspending the effectiveness
of the Registration Statement is in effect and no proceedings for such purpose have been instituted or, to the knowledge of the Company,
are pending or contemplated or threatened by the SEC. At the time the Registration Statement and the Company’s most recent Annual
Report on Form 10-K for periods after December 31, 2022 was filed with the SEC, the Company met the then-applicable requirements for
use of Form S-3 under the Securities Act. The documents incorporated or deemed to be incorporated by reference in the Registration Statement,
at the time they were or hereafter are filed with the SEC, or became effective under the Exchange Act, as the case may be, complied and
will comply with in all material respects with the requirements of the Exchange Act.
(vv) Prospectus Supplement
Disclosure. The Prospectus Supplement when filed complied in all material respects with the Securities Act. Each of the Registration
Statement and any post-effective amendment thereto, at the time it became or becomes effective, complied and will comply in all material
respects with the Securities Act, and did not, and at any Closing Date will not, contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus Supplement
(including any prospectus wrapper), as of its date, did not, and at any Closing Date, will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. There are no contracts or other documents required to be described in the Prospectus Supplement or to
be filed as an exhibit to the Registration Statement which have not been described or filed as required. No event, liability, development
or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries
or any of their respective businesses, properties, liabilities, prospects, operations (including results thereof) or condition (financial
or otherwise), that (i) would be required to be disclosed by the Company under applicable securities laws on a registration statement
on Form S-3 filed with the SEC relating to an issuance and sale by the Company of any shares of Common Stock and which has not been publicly
announced, (ii) could have a material adverse effect on each Purchaser’s investment hereunder or (iii) could have a Material Adverse
Effect.
4. COVENANTS.
(a) Best
Efforts. Each Purchaser shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy
each of the covenants hereunder and conditions to be satisfied by it as provided in Section 7 of this Agreement.
(b) Blue
Sky. The Company shall, on or before the Closing Date, take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale to each Purchaser at the Closing pursuant
to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption
from such qualification), and shall provide evidence of any such action so taken to each Purchaser on or prior to the Closing Date. Without
limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports relating to the
offer and sale of the Securities required under all applicable securities laws (including, without limitation, all applicable federal
securities laws and all applicable “Blue Sky” laws), and the Company shall comply with all applicable foreign, federal, state
and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities to each Purchaser.
(c) Reporting
Status. Until the date on which each Purchaser shall have sold all of the Securities (the “Reporting
Period”), the Company shall timely file all reports required to be filed with the SEC pursuant to the Exchange Act, and the
Company shall not terminate its status as an issuer required to file reports under the Exchange Act even if the Exchange Act or the rules
and regulations thereunder would no longer require or otherwise permit such termination.
(d) Use
of Proceeds. The Company will use the proceeds from the sale of the Securities for working capital and
general corporate purposes.
(e) Financial
Information. The Company agrees to send the following to each Purchaser during the Reporting Period
(i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system, within one (1)
Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, any
interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements and/or cash flow statements
for any period other than annual, any Current Reports on Form 8-K and any registration statements (other than on Form S-8) or amendments
filed pursuant to the Securities Act, (ii) unless the following are either filed with the SEC through EDGAR or are otherwise widely disseminated
via a recognized news release service (such as PR Newswire), on the same day as the release thereof, e-mail copies of all press releases
issued by the Company or any of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR, copies of any notices
and other information made available or given to the stockholders of the Company generally, contemporaneously with the making available
or giving thereof to the stockholders.
(f) Listing.
The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Conversion Shares upon each
national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or designated for quotation
(as the case may be) (subject to official notice of issuance) and shall maintain such listing or designation for quotation (as the case
may be) of all Conversion Shares from time to time issuable under the terms of the Transaction Documents on such national securities exchange
or automated quotation system. The Company shall maintain the Common Stock’s listing or authorization for quotation (as the case
may be) on the Principal Market, The New York Stock Exchange, the Nasdaq Capital Market, the Nasdaq Global Market or the Nasdaq Global
Select Market (each, an “Eligible Market”). Neither the Company nor any of its Subsidiaries shall take any action which
could be reasonably expected to result in the delisting or suspension of the Common Stock on an Eligible Market. The Company shall pay
all fees and expenses in connection with satisfying its obligations under this Section 4(f).
(g) Fees
and Expenses. The Company shall pay Sichenzia Ross Ference Carmel LLP, counsel to the Purchasers, reasonable
legal fees and expenses incurred in connection with the transactions contemplated by this Agreement, in the amount of $25,000.
(h) Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges
and agrees that the Securities may be pledged by each Purchaser in connection with a bona fide margin agreement or other loan or financing
arrangement that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the
Securities hereunder, and each Purchaser, in effecting a pledge of Securities, shall not be required to provide the Company with any notice
thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document. The Company hereby
agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of
the Securities to such pledgee by each Purchaser.
(i) Disclosure
of Transactions and Other Material Information.
(i) Disclosure
of Transaction. The Company shall, on or before 9:00 a.m., New York time, on the first (1st) Business Day after the date of this
Agreement, issue a press release (the “Press Release”) reasonably acceptable to each Purchaser disclosing all the material
terms of the transactions contemplated by the Transaction Documents. On or before 9:00 a.m., New York time, on the first (1st)
Business Day after the date of this Agreement, the Company shall file a Current Report on Form 8-K describing all the material terms of
the transactions contemplated by the Transaction Documents in the form required by the Exchange Act and attaching all the material Transaction
Documents (the “8-K Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed all material,
non-public information (if any) provided to each Purchaser by the Company or any of its Subsidiaries or any of their respective officers,
directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon
the filing of the 8-K Filing, 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, affiliates, employees
or agents, on the one hand, and each Purchaser or any of its affiliates, on the other hand, shall terminate.
(ii) Limitations
on Disclosure. Other than as required under the Transaction Documents (but subject to any other disclosure obligations of the Company
with respect thereto), the Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective
officers, directors, employees and agents not to, provide each Purchaser with any material, non-public information regarding the Company
or any of its Subsidiaries from and after the date hereof unless prior thereto each Purchaser shall have consented in writing to the receipt
of such information and agreed with the Company to keep such information confidential. If any material, non-public information is required
to be provided by the Company or any of its Subsidiaries to each Purchaser pursuant to the Transaction Documents, the Company shall obtain
each Purchaser’s prior written consent prior to providing such information to each Purchaser, and if each Purchaser fails to provide
such written consent, the Company shall not be deemed to be in breach of any of the Transaction Documents as a result of the failure to
provide such information. To the extent that the Company delivers any material, non-public information to each Purchaser without each
Purchaser’s prior written consent in breach of the foregoing sentence, the Company hereby covenants and agrees that each Purchaser
shall not have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information,
provided that each Purchaser shall remain subject to applicable law. Subject to the foregoing, neither the Company, its Subsidiaries nor
each Purchaser shall issue any press releases or any other public statements with respect to the transactions contemplated hereby, except
the Press Release; provided, however, the Company shall be entitled, without the prior approval of each Purchaser, to make any press release
or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and (ii) as is required
by applicable law and regulations (provided that in the case of clause (i) above, each Purchaser shall be consulted by the Company in
connection with any such press release or other public disclosure prior to its release). Without the prior written consent of each Purchaser
(which may be granted or withheld in each Purchaser’s sole discretion), the Company shall not (and shall cause each of its Subsidiaries
and affiliates to not) disclose the name of each Purchaser in any filing, announcement, release or otherwise, except in the 8-K Filing
and as otherwise may be required by applicable law or regulations. Notwithstanding anything contained in this Agreement to the contrary
and without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that each Purchaser shall
not have (unless expressly agreed to by each Purchaser after the date hereof in a written definitive and binding agreement executed by
the Company and each Purchaser), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public
information regarding the Company or any of its Subsidiaries.
(j) Reservation
of Shares. So long as either of the Notes remains outstanding, the Company shall take all action necessary
to at all times have authorized, and reserved for the purpose of issuance, no less than 100% of the maximum number of Conversion Shares
(assuming for purposes hereof that any such conversion shall not take into account any limitations on the conversion of the Note as set
forth therein) (the “Required Reserve Amount”); provided that at no time shall the number of shares of Common Stock
reserved pursuant to this Section 4(j) be reduced other than in connection with any conversion and/or redemption of the Note. If at any
time the number of shares of Common Stock authorized and reserved for issuance is not sufficient to meet the Required Reserve Amount,
the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares, including, without
limitation, calling a special meeting of stockholders to authorize additional shares to meet the Company’s obligations pursuant
to the Transaction Documents, in the case of an insufficient number of authorized shares, obtain stockholder approval of an increase in
such authorized number of shares, and voting the management shares of the Company in favor of an increase in the authorized shares of
the Company to ensure that the number of authorized shares is sufficient to meet the Required Reserve Amount.
(k) Conduct
of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of
any law, ordinance or regulation of any Governmental Entity, except where such violations would not reasonably be expected to result,
either individually or in the aggregate, in a Material Adverse Effect.
(l) [Intentionally
Omitted]
(m) [Intentionally
Omitted]
(n) Passive
Foreign Investment Company. The Company shall conduct its business, and shall cause its Subsidiaries
to conduct their respective businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign
investment company within the meaning of Section 1297 of the Code.
(o) Corporate
Existence. So long as either Purchaser beneficially owns the Note, the Company shall not be party to
any Fundamental Transaction (as defined in the Note) unless the Company is in compliance with the applicable provisions governing Fundamental
Transactions set forth in the Note.
(p) Conversion
Procedures. The form of Conversion Notice (as defined in the Note) included in the Note sets forth the totality of the procedures
required of each Purchaser in order to convert the Note. The Company shall honor conversions of the Note and shall deliver the Conversion
Shares in accordance with the terms, conditions and time periods set forth in the Note.
(q) Regulation
M. The Company will not take any action prohibited by Regulation M under the Exchange Act, in connection
with the distribution of the Securities contemplated hereby.
(r) Registration
Statement.
(i) Maintaining
the Registration Statement. The Company shall use commercially reasonable efforts to maintain the effectiveness of the Registration
Statement and the Prospectus Supplement with respect to the Conversion Shares at all times while the Note is outstanding (the “Registration
Period”), except for any time during which the SEC reviews any successor registration statement, post-effective amendment to
the Registration Statement, any supplement to the Prospectus Supplement, any successor prospectus supplement to the Registration Statement
or other filing necessary to register the offer and sale of the Conversion Shares and resale of the Conversion Shares. Notwithstanding
anything to the contrary contained in this Agreement, the Company shall ensure that the Registration Statement (including, without limitation,
all successor registration statements, amendments and supplements thereto) and the Prospectus Supplement (including, without limitation,
all successor prospectus supplements, amendments and supplements thereto) used in connection with such Registration Statement shall not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the
statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading. During the
Registration Period, the Company shall notify the Investor promptly if (i) the Registration Statement shall cease to be effective under
the Securities Act, (ii) the Common Stock shall cease to be authorized for listing on the Principal Market, (iii) the Common Stock ceases
to be registered under Section 12(b) or Section 12(g) of the Exchange Act or (iv) the Company fails to file in a timely manner all reports
and other documents required of it as a reporting company under the Exchange Act, and the occurrence of such event or events shall be
deemed an Event of Default under the Note.
(ii)
Amendments and Other Filings. The Company shall (i) prepare and file with the SEC such amendments (including post-effective amendments)
and supplements to the Registration Statement or Prospectus Supplement or other related prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the Securities Act, as may be necessary to keep such
Registration Statement effective at all times during the Registration Period; (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 promulgated under the Securities Act; (iii) provide the Purchaser copies of all correspondence from and to the SEC relating
to a Registration Statement (provided that the Company may excise any information contained therein which would constitute material non-public
information).
(iii) Effect
of Failure to File Maintain Effectiveness of any Registration Statement. If (i) the Company fails to maintain a Registration Statement
covering the resale of all of the Conversion Shares required to be covered thereby and required to be filed by the Company pursuant to
this Agreement or if a Registration Statement is not effective for any reason or the prospectus contained therein is not available for
use for any reason and (ii) the Conversion Shares cannot be issued without any restrictive legend, including pursuant to Section 3(a)(9)
of the Securities Act, then, as partial relief for the damages to any holder by reason of any such delay in, or reduction of, its ability
to sell the Conversion Shares (which remedy shall not be exclusive of any other remedies available at law or in equity, including, without
limitation, specific performance), the Company shall pay to each holder of the Notes an amount in cash equal to two percent (2%) of such
holder’s original principal amount stated in such holder’s Note on the Closing Date (1) on the date of such maintenance failure,
and (2) on every thirty (30) day anniversary thereof (in each case, pro rated for periods totaling less than thirty (30) days). In the
event the Company fails to make such payment or payments in a timely manner in accordance with the foregoing, such unpaid amount shall
bear interest at the rate of two percent (2%) per month (prorated for partial months) until paid in full.
5. REGISTER;
TRANSFER AGENT INSTRUCTIONS; LEGEND.
(a) Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice
to each holder of Securities), a register for the Note in which the Company shall record the name and address of the Person in whose name
the Note has been issued (including the name and address of each transferee), the principal amount of the Note held by such Person and
the number of Conversion Shares issuable pursuant to the terms of the Note. The Company shall keep the register open and available at
all times during business hours for inspection of each Purchaser or its legal representatives.
(b) Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent
transfer agent (as applicable, the “Transfer Agent”) in a form acceptable to each Purchaser (the “Irrevocable
Transfer Agent Instructions”) to issue certificates or credit shares to the applicable balance accounts at The Depository Trust
Company (“DTC”), registered in the name of each Purchaser or its respective nominee(s), for the Conversion Shares in
such amounts as specified from time to time by each Purchaser to the Company upon conversion of the Note. The Company represents and warrants
that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5(b), and stop transfer instructions
to give effect to Section 2(g) hereof, will be given by the Company to its transfer agent with respect to the Securities, and that the
Securities shall otherwise be freely transferable on the books and records of the Company, as applicable, to the extent provided in this
Agreement and the other Transaction Documents. If each Purchaser effects a sale, assignment or transfer of the Securities in accordance
with Section 2(g), the Company shall permit the transfer and shall promptly instruct its transfer agent to issue one or more certificates
or credit shares to the applicable balance accounts at DTC in such name and in such denominations as specified by each Purchaser to effect
such sale, transfer or assignment. In the event that such sale, assignment or transfer involves Conversion Shares sold, assigned or transferred
pursuant to an effective registration statement or in compliance with Rule 144, the transfer agent shall issue such shares to each Purchaser,
assignee or transferee (as the case may be) without any restrictive legend in accordance with Section 5(d) below. The Company acknowledges
that a breach by it of its obligations hereunder will cause irreparable harm to each Purchaser. Accordingly, the Company acknowledges
that the remedy at law for a breach of its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach
or threatened breach by the Company of the provisions of this Section 5(b), that each Purchaser shall be entitled, in addition to
all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without
the necessity of showing economic loss and without any bond or other security being required. Any fees (with respect to the transfer agent,
counsel to the Company or otherwise) associated with the removal of any legends on any of the Securities shall be borne by the Company.
(c) FAST
Compliance. While the Note remains outstanding, the Company shall maintain a transfer agent that participates in FAST.
6. CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.
(a) The
obligation of the Company hereunder to issue and sell the Note to each Purchaser at the Closing is subject to the satisfaction, at or
before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit
and may be waived by the Company at any time in its sole discretion by providing each Purchaser with prior written notice thereof:
(i) The
Purchaser shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.
(ii) The
Purchaser shall have delivered to the Company the Purchase Price in cash for the Note being purchased by each Purchaser at the Closing.
(iii) The
representations and warranties of each Purchaser shall be true and correct in all material respects as of the date when made and as of
the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which
shall be true and correct as of such specific date), and each Purchaser shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by each Purchaser
at or prior to the Closing Date.
7. CONDITIONS
TO THE PURCHASER’S OBLIGATION TO PURCHASE.
(a) The
obligation of each Purchaser hereunder to purchase the Note at the Closing is subject to the satisfaction, at or before the Closing Date,
of each of the following conditions, provided that these conditions are for each Purchaser’s sole benefit and may be waived by each
Purchaser at any time in its sole discretion by providing the Company with prior written notice thereof:
(i) The
Company shall have duly executed and delivered to each Purchaser each of the Transaction Documents to which it is a party and the Company
shall have duly executed and delivered to each Purchaser the Note being purchased by each Purchaser at the Closing pursuant to this Agreement.
(ii) The
Company shall have delivered to such Purchaser a certificate evidencing the formation and good standing of the Company in Delaware issued
by the Delaware Secretary of State dated no later than five Business Days prior to the Closing Date.
(iii) The
Company shall have delivered to each Purchaser a certificate, in the form acceptable to each Purchaser, executed by the Secretary of the
Company dated as of the Closing Date as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s Board
of Directors in a form reasonably acceptable to each Purchaser, (ii) the Certificate of Incorporation of the Company and (iii) the
Bylaws of the Company, each as in effect at the Closing.
(iv) Each
and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Closing Date as
though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements
and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. Such Purchaser shall
have received the Officer’s Certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date,
to the foregoing effect and as to such other matters as may be reasonably requested by each Purchaser in the form acceptable to each Purchaser.
(v) The
Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended,
as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the
Principal Market have been threatened, as of the Closing Date, in writing by the SEC or the Principal Market.
(vi) No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by
the Transaction Documents.
(vii) Since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material
Adverse Effect.
(viii) The
Company shall within ten (10) Business Days of Closing utilize its best efforts to obtain approval of the Principal Market to list the
Conversion Shares.
(ix) The
Company shall have delivered to each Purchaser such other documents, instruments or certificates relating to the transactions contemplated
by this Agreement as each Purchaser or its counsel may reasonably request.
8. TERMINATION.
In the event that the Closing
shall not have occurred within five (5) days of the date hereof, then each Purchaser shall have the right to terminate its obligations
under this Agreement at any time on or after the close of business on such date without liability of each Purchaser to the Company; provided,
however, the right to terminate this Agreement under this Section 8 shall not be available to each Purchaser if the failure of the
transactions contemplated by this Agreement to have been consummated by such date is the result of either Purchaser’s breach of
this Agreement. Nothing contained in this Section 8 shall be deemed to release any party from any liability for any breach by such
party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific
performance by any other party of its obligations under this Agreement or the other Transaction Documents.
9. MISCELLANEOUS.
(a) Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or
in connection herewith or under any of the other Transaction Documents or with any transaction contemplated hereby or thereby, 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. Each party hereby irrevocably waives personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the address for such 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 manner permitted by law. Nothing contained herein shall be deemed or operate to
preclude each Purchaser from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the
Company’s obligations to each Purchaser or to enforce a judgment or other court ruling in favor of each Purchaser. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which 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. In the event that any signature
is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature
page, such signature page 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 signature page were an original thereof.
(c) Headings;
Gender. The headings of this Agreement are for convenience of reference and shall not form part of,
or affect the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to
include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,”
“include” and words of like import shall be construed broadly as if followed by the words “without limitation.”
The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement
instead of just the provision in which they are found.
(d) Severability;
Maximum Payment Amounts. If any provision of this Agreement 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 Agreement so long as this Agreement as so modified
continues to express, without material change, the original intentions of the parties 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 parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties
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). Notwithstanding anything
to the contrary contained in this Agreement or any other Transaction Document (and without implication that the following is required
or applicable), it is the intention of the parties that in no event shall amounts and value paid by the Company, or payable to or received
by each Purchaser, under the Transaction Documents (including without limitation, any amounts that would be characterized as “interest”
under applicable law) exceed amounts permitted under any applicable law. Accordingly, if any obligation to pay, payment made to each Purchaser,
or collection by each Purchaser pursuant the Transaction Documents is finally judicially determined to be contrary to any such applicable
law, such obligation to pay, payment or collection shall be deemed to have been made by mutual mistake of each Purchaser and the Company
and such amount shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may
be, as would not be so prohibited by the applicable law. Such adjustment shall be effected, to the extent necessary, by reducing or refunding,
at the option of each Purchaser, the amount of interest or any other amounts which would constitute unlawful amounts required to be paid
or actually paid to each Purchaser under the Transaction Documents. For greater certainty, to the extent that any interest, charges, fees,
expenses or other amounts required to be paid to or received by each Purchaser under any of the Transaction Documents or related thereto
are held to be within the meaning of “interest” or another applicable term to otherwise be violative of applicable law, such
amounts shall be pro-rated over the period of time to which they relate.
(e) Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits
attached hereto and thereto and the instruments referenced herein and therein supersede all other prior oral or written agreements between
each Purchaser, the Company, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by each
Purchaser with respect to the Note or the Securities, and the other matters contained herein and therein, and this Agreement, the other
Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein contain
the entire understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing contained
in this Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements each Purchaser
has entered into with, or any instruments each Purchaser has received from, the Company or any of its Subsidiaries prior to the date hereof
with respect to any prior investment made by each Purchaser in the Company or (ii) waive, alter, modify or amend in any respect any obligations
of the Company or any of its Subsidiaries, or any rights of or benefits to each Purchaser or any other Person, in any agreement entered
into prior to the date hereof between or among the Company and/or any of its Subsidiaries and each Purchaser, or any instruments each
Purchaser received from the Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments shall
continue in full force and effect. Except as specifically set forth herein or therein, neither the Company nor each Purchaser makes any
representation, warranty, covenant or undertaking with respect to such matters. For clarification purposes, the Recitals and Definitions
are part of this Agreement. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company
and each Purchaser. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
As a material inducement for each Purchaser to enter into this Agreement, the Company expressly acknowledges and agrees that (x) no due
diligence or other investigation or inquiry conducted by each Purchaser, any of its advisors or any of its representatives shall affect
each Purchaser’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations
and warranties contained in this Agreement or any other Transaction Document and (y) unless a provision of this Agreement or any other
Transaction Document is expressly preceded by the phrase “except as disclosed in the SEC Reports,” nothing contained in any
of the SEC Reports shall affect each Purchaser’s right to rely on, or shall modify or qualify in any manner or be an exception to
any of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document.
(f) Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronic
mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does
not receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to such
recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case,
properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications shall be:
If to the Company:
Ault Alliance, Inc.
11411 Southern Highlands Parkway, Suite 240
Las Vegas, NV 89141
Attention: William B. Horne, Chief Executive Officer
E-Mail:
With a copy (which shall not constitute notice) to:
Ault Alliance, Inc.
122 East 42nd Street, 50th Floor
Suite 5000
New York, NY 10168
Attention: Henry Nisser, President and General Counsel
E-Mail:
If to each Purchaser:
To such address as has been delivered to the Company
or to such other mailing address and/or e-mail
address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party
five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time, date and
recipient’s e-mail or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by
e-mail or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.
(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns, including any purchasers of any of the Note. The Company shall not assign this Agreement or any rights
or obligations hereunder without the prior written consent of each Purchaser, including, without limitation, by way of a Fundamental Transaction
(as defined in the Note) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth
in the Note). The Purchaser may assign some or all of its rights hereunder in connection with any transfer of any of its Securities without
the consent of the Company, in which event such assignee shall be deemed to be a Purchaser hereunder with respect to such assigned rights.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person,
other than the Indemnitees referred to in Section 9(k).
(i) Survival.
The representations, warranties, agreements and covenants shall survive the Closing.
(j) Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.
(k) Indemnification.
In consideration of each Purchaser’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless each Purchaser and each holder of any Securities and all of their stockholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without
limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee
as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Company
in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the Company contained in any of the Transaction
Documents or (iii) any cause of action, suit, proceeding or claim brought or made against such Indemnitee by a third party (including
for these purposes a derivative action brought on behalf of the Company or any Subsidiary) or which otherwise involves such Indemnitee
that arises out of or results from (A) the execution, delivery, performance or enforcement of any of the Transaction Documents, (B) any
transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities,
or (C) the status of each Purchaser or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated
by the Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any
action or proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law.
(l) Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party. No specific representation or warranty shall limit the generality or applicability
of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock and any other numbers in
this Agreement that relate to the Common Stock shall be automatically adjusted for any stock splits, stock dividends, stock combinations,
recapitalizations or other similar transactions that occur with respect to the Common Stock after the date of this Agreement. Notwithstanding
anything in this Agreement to the contrary, 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 each Purchaser (or its broker or other financial representative) to effect
short sales or similar transactions in the future.
(m) Remedies.
The Purchaser and in the event of assignment by Purchaser of its rights and obligations hereunder, each holder of Securities, shall have
all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any
time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under
any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The remedies provided
in this Agreement and the other Transaction Documents shall be cumulative and in addition to all other remedies available under this Agreement
and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief).
(n) Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions
of) the Transaction Documents, whenever each 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 each 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.
(o) Payment
Set Aside; Currency. To the extent that the Company makes a payment or payments to each Purchaser hereunder
or pursuant to any of the other Transaction Documents or each Purchaser enforces or exercises its rights hereunder or 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, foreign, 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. Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction
Documents are in United States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement and all other Transaction
Documents shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar
equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation
to any amount of currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in
the Wall Street Journal on the relevant date of calculation.
(p) Judgment
Currency.
(i) If
for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document
in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this
Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement, the conversion
shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:
(1) the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or
(2) the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment Conversion Date”).
(ii) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change in the
Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall
pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
(iii) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or any other Transaction Document.
[signature pages follow]
IN WITNESS WHEREOF,
each Purchaser and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first
written above.
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COMPANY: |
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Ault Alliance, Inc. |
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By: |
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Name: William B. Horne |
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Title: Chief Executive Officer |
PURCHASER
SIGNATURE PAGE TO AULT ALLIANCE, INC.
NOTE PURCHASE
AGREEMENT
IN WITNESS WHEREOF, the undersigned
has caused this Note Purchase Agreement to be duly executed by its duly authorized signatory as of the date first indicated above.
Name of Purchaser: _______________
Signature of Authorized Signatory of Purchaser:
__________________________________
Name of Authorized Signatory: _______________
Title of Authorized Signatory: Manager
Email Address of Authorized Signatory: ________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser
(if not same as address for notice):
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
Subscription Amount: US$
EIN Number, if applicable, will be provided under
separate cover: ________________________
Exhibit A
Form of Note
Exhibit B
Transfer Agent Instruction Letter
