Exhibit 10.1


 


SECOND SUPPLEMENTAL AGREEMENT


 


THIS SECOND SUPPLEMENTAL
AGREEMENT, dated as of March 31, 2021 (this “Agreement”), by and between Acacia Research Corporation, a
Delaware corporation (the “Company”), Merton Acquisition HoldCo LLC, a Delaware limited liability company and
wholly-owned Subsidiary of the Company (“Merton”), certain other direct and indirect Subsidiaries of the Company,
Starboard Value LP (the “Designee”) on behalf of itself and on behalf of the funds and accounts under its management
that as of the date hereof hold, or that will after the date hereof hold, Preferred Shares, Series A Warrants, Series B Warrants
and/or Notes (each as defined in the Securities Purchase Agreement (as defined below)) (the “Starboard Funds”)
and Starboard Value Intermediate Fund LP, in its capacity as the Collateral Agent (the “Collateral Agent”).


 


WHEREAS, the
Company, the Designee and certain Starboard Funds have entered into, among others, that certain Securities Purchase Agreement,
dated as of November 18, 2019 (the “Securities Purchase Agreement”);


 


WHEREAS, the
Company, certain direct and indirect Subsidiaries of the Company and the Collateral Agent have entered into that certain Pledge
and Security Agreement, dated as of June 30, 2020, by the Company and Collateral Agent (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “Pledge and Security Agreement”);


 


WHEREAS, the
Company and certain direct and indirect Subsidiaries of the Company have entered into that certain Guaranty, dated as of June 30,
2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Guaranty”)
in favor of the Holders (as defined therein);


 


WHEREAS, certain
direct and indirect Subsidiaries of the Company and the Collateral Agent have entered into that certain Stock Pledge Agreement,
dated as of June 30, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the
“Stock Pledge Agreement”);


 


WHEREAS, pursuant
to the Securities Purchase Agreement, as supplemented by that certain Supplemental Agreement dated as of June 4, 2020 between the
Company and the Designee on behalf of the Starboard Funds (as amended, restated, amended and restated, supplemented or otherwise
modified from time to time, the “First Supplemental Agreement”) and that certain Exchange Agreement dated as
of June 30, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Exchange
Agreement”): (i) on November 18, 2019 the Company issued to certain Starboard Funds an aggregate of 350,000 Preferred
Shares and Series A Warrants to purchase an aggregate of 5,000,000 shares of Common Stock, (ii) on February 25, 2020 the Company
issued to certain Starboard Funds Series B Warrants to purchase an aggregate of 100,000,000 shares of Common Stock, (iii) on June
4, 2020, the Company issued Notes (the “June 4 Notes”) to certain Starboard Funds in an aggregate principal
amount of $115,000,000 and (iv) on June 30, 2020, the Company and the Designee on behalf of the Starboard Funds agreed to exchange
and replace the June 4 Notes for Notes issued by Merton in an aggregate principal amount of $115,000,000 (the “June 2020
Merton Notes”), of which currently $65,000,000 remain outstanding;


 


WHEREAS, Merton
has agreed to issue additional Notes (the “March 2021 Merton Notes” and, together with the June 2020 Merton
Notes, the “Merton Notes”);


 


WHEREAS, the
Company, Merton and the Designee on behalf of itself and the Holders have agreed to amend the June 2020 Merton Notes, the Securities
Purchase Agreement, the Pledge and Security Agreement, the Guaranty, the Stock Pledge Agreement and certain other Transaction Documents
as set forth herein; and


 


WHEREAS, the
(i) Company has informed the Designee that Events of Default have occurred and are continuing under Section 10(g) of each Merton
Note as a result of certain transfers of assets to AMO Holdco LLC, Viamet Holdco LLC and Malin J1 Limited listed on Schedule F
hereto and AMO Holdco LLC, Viamet Holdco LLC and Malin J1 Limited holding such assets (collectively, the “Specified Events
of Default”) and (ii) the Required Holders (as defined in the Merton Notes) have agreed, following a request by the Company,
to waive the Specified Events of Default.


 


 


 






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NOW, THEREFORE,
in consideration of the premises and the mutual agreements, provisions and covenants contained herein, the parties hereby agree
as follows:


 






	 	1.	Definitions. Unless otherwise specified herein, all capitalized terms used and not defined herein shall have the meanings ascribed to them in the Securities Purchase Agreement, the First Supplemental Agreement, the Exchange Agreement, the Pledge and Security Agreement, the Guaranty or the Stock Pledge Agreement, as applicable.
	 	 	 
	 	2.	Amendment of June 2020 Merton Notes
        and Issuance of March 2021 Merton Notes.
	 	 	 
	 	 	a. Amendment to June 2020 Merton Notes.
        The Company, Merton and the Designee on behalf of the Starboard Funds representing the Required Holders (as defined in the June
        2020 Merton Notes) agree to amend the terms of the June 2020 Merton Notes as follows:



 





	 	 	1.	Definition of Maturity Date. The definition of the term “Maturity Date” set forth in Section 1 of the
        June 2020 Merton Notes is amended and replaced by the following: “July 15, 2021”.
	 	 	 	 
	 	 	2.	Definition of Eligible Market. The definition of the term “Eligible Market” set forth in Section 27(y)
        of the June 2020 Merton Notes is amended and replaced by the following (additions in bold underline and deletions in strikethrough):
	 	 	 	 
	 	 	 	“Eligible Market” means
        the Principal Market, The New York Stock Exchange, The Nasdaq Capital Market, The Nasdaq Global Market or, the
        NYSE American, the London Stock Exchange, including the AIM, or the Euronext Stock Exchange.
	 	 	 	 
	 	 	3.	Section 10(g). Section 10(g) of the June 2020 Merton Notes is amended and replaced by the following (additions in
        bold underline):
	 	 	 	 
	 	 	 	(g) Non-Guarantor Subsidiaries.
	 	 	 	 
	 	 	 	(i) The Parent Guarantor shall
        not permit any of its Subsidiaries that are not Guarantors (“Non-Guarantor Subsidiaries”) to, directly or indirectly:
	 	 	 	(1) Incur any Indebtedness (including
        Acquired Indebtedness) or issue any shares of Disqualified Stock and the Parent Guarantor shall not permit any of the Non-Guarantor
        Subsidiaries to issue any shares of Preferred Stock;
	 	 	 	(2) assume or guarantee any Indebtedness
        secured by a Lien upon any asset or property of such Non-Guarantor Subsidiary or on any evidences of Indebtedness or shares of
        Capital Stock of, or other ownership interests in, any Non-Guarantor Subsidiary (regardless of whether the asset, property, Indebtedness,
        Capital Stock or ownership interests were acquired before or after the date hereof);
	 	 	 	(3) hire any employees or enter
        into any leases, except (i) if done by ARG in the ordinary course of business or (ii) if required by applicable law; and
	 	 	 	(4) except for ARG, engage in any
        business activities or have any material properties or liabilities, other than (i) activities related to the maintenance of its
        corporate existence, (ii) activities related to their ordinary course activities of purchasing Intellectual Property, (iii) activities
        related to their ordinary course activities of retaining legal counsel to represent such non-guarantor subsidiary as a plaintiff
        in Intellectual Property litigation, (iv) activities to comply with applicable law, (v) transactions among the Parent Guarantor
        and its Subsidiaries in their ordinary course of business, (vi) with respect to AMO Holdco LLC, Viamet Holdco LLC and Malin
        J1 Limited, holding the assets and being party to those agreements listed on Schedule F of that certain Second Supplemental Agreement,
        dated as of March 31, 2021, by and among Parent Guarantor, the Company, certain of other direct and indirect subsidiaries of the
        Parent Guarantor, Starboard Value LP and Starboard Value Intermediate Fund LP, and such other assets that AMO Holdco LLC and Viamet
        Holdco LLC may hold as a result of dividends, distributions or similar corporate transactions that AMO Holdco LLC, Viamet Holdco
        LLC and Malin J1 Limited may be entitled to as a result of holding such assets or ordinary course activities related to holding
        such assets; and (vi) activities, liabilities and properties incidental to the foregoing clauses (i) through (iv),
        with all such liabilities in total not to exceed an aggregate of $5,000,000 among all non-guarantor subsidiaries as a whole and
        $1,000,000 for each non-guarantor subsidiary individually, excluding legal and professional fees and royalty sharing arrangements
        accrued in the ordinary course of the patent assertion business.
	 	 	 	(ii) ARG may maintain a balance
        of Cash and Marketable Securities of no more than $10,000,000 solely in order to conduct its ordinary course business activities.



 


 


 






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	 	 	4.	Certificate of Investment Company Status. The following shall be added as Section 10(h) of the June 2020 Merton Notes:
	 	 	 	 
	 	 	 	“(h) Investment Company
        Status. Between six (6) Business Days and four (4) Business Days prior to the end of each fiscal quarter beginning with the
        fiscal quarter ended June 30, 2021, the Parent Guarantor shall deliver a certificate signed by an executive officer of the Parent
        Guarantor to the Holder certifying that the Company reasonably expects that, following the delivery of the Parent Guarantor’s
        financial statements for such quarter, neither the Parent Guarantor nor any subsidiary of the Parent Guarantor will be an “investment
        company,” a company controlled by an “investment company” or an “affiliated person” of, or “promoter”
        or “principal underwriter” for, an “investment company”, in each case as such terms are defined in the
        Investment Company Act of 1940, as amended.”
	 	 	 	 
	 	 	 	and Section 4(a) shall
        be amended by adding the following clause (xxi):
	 	 	 	 
	 	 	 	“(xxi) the failure
        to deliver the certificate as required by Section 10(h).”
	 	 	 	 
	 	 	 	b. New Issuance. Merton agrees to
        issue March 2021 Merton Notes in favor of the Holders set forth in column (1) on Exhibit B in an aggregate principal
        amount of $50,000,000 in the form attached hereto as Exhibit A in the denominations as set forth in column (2) on
        Exhibit B.  The aggregate purchase price for the March 2021 Merton Notes to be purchased by each Holder shall
        be the amount set forth opposite such Holder’s name in column (3) on Exhibit B. The parties hereby acknowledge
        and agree that (i) the March 2021 Merton Notes shall be deemed issued pursuant to the Securities Purchase Agreement and shall be
        deemed “Notes” with respect to all the Transaction Documents, including, without limitation, the First Supplemental
        Agreement and the Exchange Agreement, and (ii) the issuance of the March 2021 Merton Notes shall be deemed an “Additional
        Closing” with respect to all the Transaction Documents and, accordingly, the issuance of the March 2021 Merton Notes shall
        be subject to the satisfaction (or waiver in writing by the Company or the Starboard Funds, as applicable) of the applicable conditions
        set forth in Sections 6(c)(i) and (iii) and Sections 7(c)(i), (ii), (iv), (v), (vi), (vii), (viii), (x), (xi), (xiv), (xv), (xvi),
        (xvii), (xviii) and (xix) of the Securities Purchase Agreement, including that the Company and Merton shall bring down all applicable
        representations and warranties set forth in Section 3 of the Securities Purchase Agreement to the date hereof (or, to the extent
        made as of a certain date, as of such date) and, for which purpose, all references to (i) the Notes and (ii) the Company in the
        Securities Purchase Agreement, shall be deemed to refer to (ii) the March 2021 Merton Notes and (ii) the Company and Merton, respectively.



 






		3.	Amendment to Securities
Purchase Agreement



 


		a.	In accordance with Section
9(e) of the Securities Purchase Agreement, the Company and the Designee representing the Required Holders (as defined in the Securities
Purchase Agreement) hereby agree to amend the Securities Purchase Agreement, as set forth in this Section 3, which amendments
shall be binding upon each Buyer and holder of Securities and the Company.



 


		b.	As of the execution and delivery
of this Agreement by the Company and the Designee, the definition of “Transaction Documents” set forth in Section
3(b) of the Securities Purchase Agreement shall be amended to add this Agreement and the March 2021 Merton Notes to such definition
(in addition to any amendment to such definition pursuant to the First Supplemental Agreement and the Exchange Agreement).



 


		c.	The Company hereby acknowledges
and agrees that any Stockholder Notes to be issued to the Company’s stockholders (i) shall rank pari passu with
or junior in right of payment to the Merton Notes, (ii) if secured, shall rank pari passu with or junior in right of security
to the Liens on the Collateral securing the Merton Notes, (iii) cannot be guaranteed by any Person that does not also guarantee
the Merton Notes and (iv) cannot be more favorable than the Merton Notes to the respective holders thereof.



 


 


 


 






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		d.	The parties hereby acknowledge
and agree that the March 2021 Merton Notes shall be deemed issued pursuant to the Securities Purchase Agreement and shall be deemed
“Notes” with respect to all the Transaction Documents, including, without limitation, the First Supplemental Agreement
and the Exchange Agreement.



 


		e.	The parties hereby agree
that notwithstanding anything to the contrary in the Securities Purchase Agreement, the total principal amount of Notes that may
be issued under the Securities Purchase Agreement and that may be deemed to be issued under the Securities Purchase Agreement
pursuant to the Exchange Agreement and/or this Agreement shall not exceed the sum of (i) $365,000,000 and (ii) the principal amount
of the Merton Notes that are outstanding immediately after the issuance of the March 2021 Merton Notes; provided, however,
that at no one time shall there be more than $365,000,000 principal amount of Notes (including, without limitation, Merton Notes)
outstanding.



 


		f.	The definition of “Subsidiaries” set forth
in Section 3(a) of the Securities Purchase Agreement shall be amended and replaced by the following, to be applied retroactively
to the date of the Securities Purchase Agreement: 



“Subsidiaries” (which
for purposes of this Agreement shall have the meaning ascribed to such term in Rule 405 of the 1933 Act); provided, however,
that a Subsidiary shall continue to be a Subsidiary unless and until the Parent Guarantor ceases to, directly or indirectly, hold
any equity interest in such Subsidiary as a result of a transaction in compliance with the terms of the Transaction Documents.



 


		4.	Amendment to First Supplemental Agreement. In accordance
with Section 16 of the First Supplemental Agreement, the Company and the Designee hereby agree that all references in Section
6 of the First Supplemental Agreement to “SPA Notes” shall include a reference to the Merton Notes, mutatis
mutandis.



 


		5.	Amendment to the Series B Warrants. In accordance
with Section 9 of the Series B Warrants, the Company and the Designee representing the Required Holders (as defined in the Series
B Warrants) hereby agree to amend the Series B Warrants to add the Merton Notes to the definition of the term “Note”.
For the avoidance of doubt, Merton Notes may be tendered pursuant to a Note Cancellation under the Series B Warrants on the terms
set forth in the Series B Warrants and the Merton Notes.



 


		6.	Agreement regarding Registration Rights Agreement. In
accordance with Section 11 of the Registration Rights Agreement, the Company and the Designee representing the Required Holders
(as defined in the Registration Rights Agreement) hereby agree that, notwithstanding anything to the contrary in the Securities
Purchase Agreement and the Registration Rights Agreement, the Merton Notes shall not be considered “Notes” as defined
in the Registration Rights Agreement.



 


		7.	Satisfaction of Conversion
Right. Notwithstanding anything to the contrary in the Certificate of Designations, the Company and the Designee on behalf
of itself and the Starboard Funds hereby acknowledge and agree that delivery of Merton Notes shall satisfy the delivery of Exchange
Notes pursuant to Section 16 of the Certificate of Designations.




 


 


 


 






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		8.	Representations and Warranties.



 


a. The Designee represents and warrants to the Company, and the Company represents and warrants to the Designee and the Starboard Funds holding the Merton Notes in accordance with this Agreement, that, as of the date hereof: (i) such Person is an entity duly organized and validly existing under the laws of the jurisdiction of its formation, has the requisite power and authority to execute and deliver this Agreement and to carry out and perform all of its obligations under the terms of this Agreement; (ii) this Agreement has been duly executed and delivered on behalf of such Person, and this Agreement constitutes the valid and legally binding obligation of such Person enforceable against such Person 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; (iii) the execution, delivery and performance by such Person of this Agreement and the consummation by such Person of the transactions contemplated hereby will not (1) result in a violation of the organizational documents of such Person, (2) 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 such Person is a party, or (3) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Person, except in the case of clause (2) and (3) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Person to perform its obligations hereunder; (iv) for the purposes of Rule 144 of the 1933 Act, as in effect on the date hereof, each such Person hereby acknowledges and agrees that, in the event of an exercise of Series B Warrants pursuant to a Note Cancellation (as defined in the Series B Warrants) tendering the March 2021 Merton Notes, the holding period of the March 2021 Merton Notes may be tacked onto the holding period of the Series B Warrant Shares, and each of the Company and Merton agrees not to take a position contrary thereto or inconsistent with this Section 8(a)(iv) and (v) the Designee has the requisite authority to execute this Agreement on behalf of the Required Holders (as defined in the applicable Transaction Documents).


 


b. In addition, the Company hereby represents and warrants to the Designee and the Starboard Funds holding the Merton Notes, that, as of the date hereof: (i) the Board of Directors of the Company approved the resolutions set forth in Schedule A attached hereto; (ii) no Subsidiary, other than Acacia Research Group, LLC (“ARG”), has any (a) Material Claims or Liabilities, whether direct or indirect, absolute, accrued or contingent, that would be required to be reflected on a balance sheet prepared with respect to such Person on a stand-alone basis in accordance with GAAP, (b) unusual forward or long-term commitments, (c) unrealized or anticipated losses from any unfavorable commitments, (d) contracts or commitments, including leases or with employees, except as set forth on Schedule B attached hereto, which, for purposes of the Merton Notes, shall not be a breach of Section 10 (g)(i)(3) thereof; or (e) litigation, arbitration or dispute, including regarding tax (clause (a) to and including clause (e) are collectively referred to herein as “Obligations”), other than legal and professional fees and royalty sharing arrangements, and related contracts or commitments, accrued in the ordinary course of the patent assertion business, and, in the case of (e), litigation with respect to such Subsidiaries as plaintiffs in Intellectual Property litigation, (iii) neither the Company, nor Merton or any of their respective Subsidiaries has any knowledge of any event, circumstance or information that that would give rise to a reasonable basis for the assertion against any Subsidiary, other than ARG, of any future Obligations material to such Subsidiary on a stand-alone basis, (iv) to the Company’s knowledge, no Subsidiary, other than ARG, has conducted any business or operations or has had any liabilities or obligations or owned any asset or been party to any agreement during the last five (5) years, or, since such Subsidiary has been formed if such Subsidiary was formed within the last five (5) years, other than their ordinary course activities of purchasing and licensing intellectual property and liabilities incidental to such activities and, in the case of AMO Holdco LLC, Viamet Holdco LLC and Malin J1 Limited, those assets listed on Schedule F hereto and those agreements listed on Schedule F, other than their ordinary course activities of holding such assets incidental to such activities; and (v) the Subsidiaries listed on Schedule C attached hereto, represent all Material Subsidiaries (as defined below) of the Company. As used herein, (i) “Material Subsidiary” means any Subsidiary of the Company that, (x) had total revenues for the twelve (12) month period ended December 31, 2020 that were equal to, or more than, 1% of the consolidated revenues of the Company and its Subsidiaries or (y) as of December 31, 2020 held 1% or more of the consolidated assets of the Company and its Subsidiaries, (ii) “Material Claims or Liabilities” means claims or liabilities to third parties greater than $1 million, and (iii) “Company’s Knowledge” means the actual knowledge or belief of Clifford Press, Al Tobia, Marc Booth, Richard Rosenstein, Jason Sonsini, Li Yu, Jennifer Graff or Nadereh Russell.


 


 


 


 






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		9.	Fees and Expenses.
The Company shall within three (3) Business Days of the date hereof reimburse the Designee or its designee(s) for all reasonable
and documented costs and expenses incurred in connection with the transactions contemplated hereby (including all legal fees and
disbursements in connection therewith, documentation and implementation of the transactions contemplated hereby).



 


		10.	Post-Closing Covenant. Notwithstanding anything
to the contrary:



 


		a.	Within three (3) Business Days after receipt (or such later
date as determined by the Collateral Agent in its reasonable discretion) of the certified charter of In-depth Test LLC from the
State of Texas, the Collateral Agent shall have received a draft UCC-1 for In-depth Test LLC in form and substance reasonably
satisfactory to the Collateral Agent.



 


		b.	All representations and warranties contained in the Transaction
Documents shall be deemed modified to the extent necessary to give effect to Section 10a of this Agreement, and, to the extent
any provision of would be violated or breached as a result of such extended deadline, such provisions shall be deemed modified
to the extent necessary to give effect to Section 10a of this Agreement.



 


		c.	Any breach of Section 10a of this Agreement shall be deemed
an “Event of Default” under the Notes.



 


		11.	Indemnification. In
consideration of the Designee’s execution and delivery of this Agreement and in addition to all of the Company’s other
obligations under this Agreement and the other Transaction Documents, the Company shall defend, protect, indemnify and hold harmless
the Designee, each Starboard Fund and each other holder of the 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”), as incurred, 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 (a) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement, any other Transaction
Document or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement
or obligation of the Company contained in this Agreement, any other Transaction Document or any other certificate, instrument
or document contemplated hereby or thereby, (c) any cause of action, suit or claim brought or made against such Indemnitee by
the Company or a third party (including for these purposes a derivative action brought on behalf of the Company) and arising out
of or resulting from (i) the execution, delivery, performance or enforcement of this Agreement, any other Transaction Document
or any other certificate, instrument or document contemplated hereby or thereby or any advice or assistance provided to or on
behalf of the Company by any Indemnitee at the request of the Company, (ii) 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 (iii) the status of such Buyer or
holder of the Securities as an investor in the Company pursuant to the transactions contemplated by this Agreement and any of
the other Transaction Documents. For the avoidance of doubt, the indemnification set forth in this Section 11 is intended to apply,
and shall apply, to direct claims asserted by the Designee or any Starboard Fund against the Company as well as any third party
claims asserted by an Indemnitee (other than the Designee or a Starboard Fund) against the Company. 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 that is permissible under applicable law. Except as otherwise set forth
herein, the mechanics and procedures with respect to the rights and obligations under this Section 13 shall be the same as those
set forth in Section 7 of the Registration Rights Agreement.



 


 


 


 






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		12.	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. Each party 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. 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 the Securities Purchase Agreement and agrees
that such service shall constitute good and sufficient service of process and notice thereof to the fullest extent enforceable
under applicable law. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted
by law. 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 IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.



 


		13.	Counterparts; Headings.
This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument. The headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.



 


		14.	Severability. 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).



 


		15.	Amendments. Any amendments or modifications hereto
must be executed in writing by all parties hereto.



 


		16.	Limited Waiver. The Designee on behalf of the Required
Holders (as defined in the June 2020 Merton Notes) hereby waive (i) the Specified Events of Default, (ii) the taking of any action,
or the failure to take any action, when the Specified Events of Default have occurred and have been continuing, in each case,
not permitted under the Transaction Documents solely as a result of the occurrence and continuance of the Specified Events of
Default, (iii) the failure to give notice of (or other information with respect to) the Specified Events of Default, (iv) the
making of any representation or warranty that was proven to be incorrect when made, or deemed to be made, in any material respect
prior to the date hereof solely as a result of the occurrence and continuance of the Specified Events of Default and (v) any other
default of Event of Default that directly resulted or may result from the occurrence of the Specified Events of Default; provided,
that the foregoing waiver shall not be deemed to modify or affect the obligations of the Company or any of its Subsidiaries to
comply with each and every obligation, covenant, duty or agreement contained in the Transaction Documents to which such Person
is party from and after the date hereof and, provided, further, that all of the equity interests of AMO Holdco LLC
and Viamet Holdco LLC shall be pledged pursuant to the Stock Pledge Agreement. This waiver is a limited, one-time waiver and shall
not constitute (nor be deemed to constitute): (a) a waiver of any other default Event of Default that has occurred or that may
occur from and after the date hereof, (b) a waiver of any right or remedy of the Collateral Agent, the Designee or any Holders
under the Transaction Documents which does not arise solely as a result of the Specified Events of Default or as otherwise contemplated
by clauses (i) through (iv) above, and (c) a custom or course of dealing among the parties hereto. Except as otherwise expressly
provided herein, the Transaction Documents shall remain in full force and effect in accordance with their respective terms.



 


 


 


 






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17. Amendment to Pledge and Security Agreement. In accordance with Section 10(a) of the Pledge and Security Agreement, the Company and the Collateral Agent hereby agree as follows:


 


(a) Following the issuance of the March 2021 Merton Notes, the second WHEREAS clause is hereby amended by replacing the defined term “Notes” with the capitalized term “June 30 Notes”.


 


(b) Following the issuance of the March 2021 Merton Notes, the following WHEREAS clause shall be inserted immediately after the second WHEREAS clause and immediately prior to the third WHEREAS clause immediately prior to the effectiveness of this Agreement:


 


“WHEREAS, pursuant to the Securities Purchase Agreement, certain Buyers purchased from Merton certain senior secured notes issued on March 31, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “March 31 Notes” and, together with the June 30 Notes, collectively, the “Notes”), in an original aggregate principal amount of $50,000,000;”.


 


(c) After giving effect to this Agreement,
Schedule VIII of the Pledge and Security Agreement shall be replaced in its entirety with Schedule D to this Agreement.


 


(d) Section 4(i) of the Stock Pledge Agreement is hereby amended by (x) adding the phrase “(other than any customary pre-emptive
rights)” immediately after “or filing” and immediately before “with” and (y) deleting clause (ii)
of the first sentence thereof in its entirety; provided each of the foregoing amendments shall apply retroactively to the
date the Pledge and Security Agreement was entered into.


 


		18.	Amendment to Guaranty. In accordance with Section
11(b) of the Guaranty, the Guarantors and the Designee on behalf of the Required Holders (as defined in the Merton Notes) hereby
agree as follows:



 


(a) Following the issuance of the March 2021 Merton Notes, the following WHEREAS clause shall be added immediately following the second WHEREAS clause and immediately prior to the third WHEREAS clause immediately prior to the effectiveness of this Agreement:


 


“WHEREAS, pursuant to the Securities Purchase Agreement, certain Buyers purchased from Merton certain senior secured notes issued on March 31, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “March 31 Notes” and, together with the June 30 Notes, collectively, the “Notes”), in an original aggregate principal amount of $50,000,000;”


 


		19.	Amendment to Stock Pledge Agreement. In accordance
with Section 15(a) of the Stock Pledge Agreement, the Company and the Collateral Agent hereby agree as follows:



 


(a) Following the issuance of the March 2021 Merton Notes, the second WHEREAS clause is hereby amended by replacing the capitalized term “Notes” with the capitalized term “June 30 Notes”;


 


(b) Following the issuance of the March 2021 Merton Notes, the following WHEREAS clause shall be added immediately following the second WHEREAS clause and immediately prior to the third WHEREAS clause immediately prior to the effectiveness of this Agreement:


 


 


 


 






    	 	8	 



     

    

 


“WHEREAS, pursuant to the Securities Purchase Agreement, certain Buyers purchased from Merton certain senior secured notes issued on March 31, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “March 31 Notes” and, together with the June 30 Notes, collectively, the “Notes”), in an original aggregate principal amount of $50,000,000;”


 


(c) After giving effect to this Agreement and the Stock Pledge Supplement, Schedule I of the Stock Pledge Agreement shall be replaced in its entirety with Schedule E to this Agreement.


 


(d) After giving effect to this Agreement, the following provision shall be added immediately following Section 2(c) of the Stock Pledge Agreement and shall apply retroactively to the date the Stock Pledge Agreement was entered into:


 


“Notwithstanding anything to the contrary herein, the security interest granted herein shall not attach to, and no security interest is granted hereunder in the Excluded Assets (as such term and any component definitions are defined in the New Security Agreement (as amended, restated, amended and restated, supplemented or otherwise modified from time to time)), as applicable.”


 


(e) Section 5(b) of the Stock Pledge Agreement is hereby amended by (x) adding the phrase “(other than any customary pre-emptive rights)” immediately after “or filing” and immediately before “with” and (y) deleting clause (ii) of the first sentence thereof in its entirety; provided each of the foregoing amendments shall apply retroactively to the date the Stock Pledge Agreement was entered into.


 


		20.	Security Documents. Notwithstanding anything to
the contrary in any other Transaction Document (other than Section 10 of the Notes), the parties hereto hereby agree and acknowledge
that as of the date hereof (after giving effect to this Agreement and that certain Supplement No. 2 to the Stock Pledge Agreement,
dated as of the date hereof, by Viamet HoldCo LLC, AMO Holdco LLC, Acacia Corporate Development Investment LLC and In-Depth Test
LLC in favor of the Collateral Agent (the “Stock Pledge Agreement”)) that the Company and the following Subsidiaries
shall be party to the Security Documents as follows:



 


(a) With
respect to the Security and Pledge Agreement, (i) the Company, (ii) Merton and (iii) Merton Oxford Holdco LLC.


 


(b) With respect
to the Guaranty, (i) the Company, (ii) Merton and (iii) Merton Oxford Holdco LLC.


 


(c) With respect to the Stock Pledge Agreement,
(i) Acacia Research Group LLC, (ii) Advanced Skeletal Innovations LLC, (iii) Saint Lawrence Communications LLC, (iv) Viamet HoldCo
LLC, (v) AMO Holdco LLC, (vi) Acacia Corporate Development Investment LLC and (vii) In-Depth Test LLC; provided, the Company shall
not be party to the Stock Pledge Agreement.


 


		21.	Perfection Certificate. The Company hereby agrees
to deliver that certain Perfection Certificate, dated as of the date hereof, for (i) AMO HoldCo LLC, (ii) Acacia Corporate Development
Investment LLC, (iii) In-depth Test LLC, (iv) Atlas Global Technologies LLC, (v) Viamet HoldCo LLC, and (vi) Video Enhancement
Solutions LLC.




 


 


[Signature Page Follows]


 


 






    	 	9	 



     

    

 


 


IN WITNESS WHEREOF,
the parties have duly executed this Agreement as of the date first above written.


 


 


	 	COMPANY:
	 	 
	 	ACACIA RESEARCH CORPORATION
	 	 
	 	 
	 	By:	/s/ Clifford Press
	 	Name:	Clifford Press
	 	Title:	Chief Executive Officer
	 	 	 	 


 


 


 


 


	 	MERTON:
	 	 
	 	MERTON ACQUISITION HOLDCO LLC
	 	 
	 	 
	 	By:	/s/ Clifford Press
	 	Name:	Clifford Press
	 	Title:	Chief Executive Officer
	 	 	 	 


 


 


 






    	 	10	 



     

    

 





	 	ACACIA RESEARCH GROUP
	 	 
	 	By: /s/ Marc Booth
	 	Name: Marc Booth
	 	Title: Chief Executive Officer
	 	 
	 	 
	 	MERTON OXFORD HOLDINGS LLC
	 	 
	 	By: /s/ Clifford Press
	 	Name: Clifford Press
	 	Title: Chief Executive Officer
	 	 
	 	 
	 	SAINT LAWRENCE COMMUNICATIONS
LLC
	 	 
	 	By: /s/ Marc Booth
	 	Name: Marc Booth
	 	Title: Chief Executive Officer
	 	 
	 	 
	 	ADVANCED SKELETAL INNOVATIONS
LLC
	 	 
	 	By: /s/ Marc Booth
	 	Name: Marc Booth
	 	Title: Chief Executive Officer



 


 


 


 


 






    	 	11	 



     

    

 


IN WITNESS WHEREOF,
the parties have duly executed this Agreement as of the date first above written.


 


	 	DESIGNEE:
	 	 
	 	STARBOARD VALUE LP
	 	 
	 	 
	 	By:	/s/ Jeffrey C. Smith
	 	Name:	Jeffrey C. Smith
	 	Title:	Authorized Signatory
	 	 	 	 


 


 


 


 


 


 


 


 


 


 






    	 	12	 



     

    

 


Exhibit A


 


Form of March 2021 Merton Note


 


 


THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL
SELECTED BY THE HOLDER, IN A FORM REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR
(II) UNLESS ELIGIBLE TO BE SOLD OR SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3 AND 13(a) HEREOF. THE PRINCIPAL
AMOUNT REPRESENTED BY THIS NOTE MAY BE LESS THAN THE AMOUNT SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3 OF THIS NOTE.


Merton
Acquisition HoldCo LLC


 


SENIOR
SECURED NOTE


 


	Issuance Date:  March [●], 2021	Original Principal Amount: U.S. $[●]


 


FOR VALUE RECEIVED,
Merton Acquisition HoldCo LLC, a Delaware limited liability company (the “Company”), hereby promises to pay
to [●] or registered assigns (the “Holder”) in cash the amount set out above as the Original Principal
Amount (as reduced pursuant to the terms hereof pursuant to redemption or otherwise, the “Principal”) when due,
whether upon the Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance with the terms
hereof) and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate from the
date set out above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether
upon an Interest Payment Date (as defined below), the Maturity Date, acceleration, redemption or otherwise (in each case in accordance
with the terms hereof). This Senior Secured Note (including all Senior Secured Notes issued in exchange, transfer or replacement
hereof, this “Note”) is issued in exchange for Senior Secured Notes issued by the Company pursuant to the Securities
Purchase Agreement on an Additional Closing Date that is the Issuance Date (collectively, the “Notes” and such
other Senior Secured Notes, the “Other Notes”). Certain capitalized terms used herein are defined in Section 27.


 


PAYMENTS OF PRINCIPAL;
PREPAYMENT. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal,
any accrued and unpaid Interest and any accrued and unpaid Late Charges (as defined in Section 19(b)) on such Principal and Interest.
The “Maturity Date” shall be July 15, 2021. Other than as specifically permitted or required by this Note, the
Supplemental Agreement and the Exchange Agreement, the Company or the Parent Guarantor may not prepay any portion of the outstanding
Principal, accrued and unpaid Interest or accrued and unpaid Late Charges on Principal and Interest, if any.


 


 


 


 






    	 	A-1	 



     

    

 


INTEREST. Interest
on this Note shall commence accruing on the Issuance Date at the Interest Rate and shall be computed on the basis of a 360-day
year and twelve 30-day months and shall be payable semi-annually in arrears on each November 15 and May 15 after the Issuance Date,
provided that if any such date falls on a day that is not a Business Day, the next day that is a Business Day (each, an
“Interest Payment Date”), to the Holder of record at the close of business on the preceding November 1
and May 1 (even if such day is not a Business Day) (each, an “Interest Record Date”). Interest shall be payable
on each Interest Payment Date, to the record holder of this Note on the applicable Interest Record Date, in cash, by wire transfer
of immediately available funds pursuant to wire instructions provided by the Holder in writing to the Company. Prior to the payment
of Interest on an Interest Payment Date, Interest on this Note shall accrue at the Interest Rate and be payable by way of inclusion
of the Interest in the Redemption Amount on each Redemption Date. From and after the occurrence and during the continuance of an
Event of Default, the Interest Rate shall be increased to ten percent (10.0%) per annum. In the event that such Event of Default
is subsequently cured, the adjustment referred to in the preceding sentence shall cease to be effective as of the date of such
cure; provided, that the Interest as calculated and unpaid at such increased rate during the continuance of such Event of
Default shall continue to apply to the extent relating to the days after the occurrence of such Event of Default through and including
the date of cure of such Event of Default; provided, further, that for the purpose of this Section 2, such Event
of Default shall not be deemed cured unless and until any accrued and unpaid Interest shall be paid to the Holder, including, without
limitation, Interest accrued at the increased rate of ten percent (10.0%) per annum.


 


REGISTRATION; BOOK-ENTRY.
The Company shall maintain a register (the “Register”) for the recordation of the names and addresses of the
holders of each Note and the Principal amount of the Notes (and stated interest thereon) held by such holders (the “Registered
Notes”). The entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company
and the holders of the Notes shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes,
including, without limitation, the right to receive payments of Principal and Interest, if any, hereunder, notwithstanding notice
to the contrary. A Registered Note may be assigned or sold in whole or in part only by registration of such assignment or sale
on the Register. Upon its receipt of a request to assign or sell all or part of any Registered Note by the Holder, the Company
shall record the information contained therein in the Register and issue one or more new Registered Notes in the same aggregate
Principal amount as the Principal amount of the surrendered Registered Note to the designated assignee or transferee pursuant to
Section 12. Notwithstanding anything to the contrary in this Section 3, the Holder may assign the Note or any portion thereof to
an Affiliate of the Holder or a Related Fund of the Holder without delivering a request to assign or sell such Note to the Company
and the recordation of such assignment or sale in the Register; provided, that (x) the Company may continue to deal
solely with such assigning or selling Holder unless and until the Holder has delivered a request to assign or sell such Note or
portion thereof to the Company for recordation in the Register; (y) the failure of such assigning or selling Holder to deliver
a request to assign or sell such Note or portion thereof to the Company shall not affect the legality, validity, or binding effect
of such assignment or sale and (z) such assigning or selling Holder shall, acting solely for this purpose as a non-fiduciary agent
of the Company, maintain a register (the “Related Party Register”) comparable to the Register on behalf
of the Company, and any such assignment or sale shall be effective upon recordation of such assignment or sale in the Related Party
Register. Notwithstanding anything to the contrary set forth herein, upon redemption of any portion of this Note in accordance
with the terms hereof or cancellation of any portion of this Note in accordance with Section 26, the Holder shall not be required
to physically surrender this Note to the Company unless (A) the full Redemption Amount represented by this Note is being redeemed
or cancelled, in which case the Holder shall deliver such certificate to the Company as soon as reasonably practicable following
such redemption or cancellation or (B) the Holder has provided the Company with prior written notice requesting reissuance of this
Note upon physical surrender of this Note. The Holder and the Company shall maintain records showing the Principal, Interest and
Late Charges, if any, redeemed and/or cancelled and the dates of such redemptions and/or cancellations 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 redemption
or cancellation. If the Company does not update the Register to record such Principal, Interest and Late Charges paid and the dates
of such payments and cancellations within two (2) Business Days of such occurrence, then the Register shall be automatically deemed
updated to reflect such occurrence.


 


 


 


 






    	 	A-2	 



     

    

 


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 (iv) and (v) shall constitute a “Bankruptcy Event of Default”:


 


1. the
failure of the applicable Registration Statement required to be filed pursuant to the Registration Rights Agreement to be
filed or declared effective within the applicable time period specified in the Registration Rights Agreement, or, at any time
while the applicable Registration Statement is required to be maintained effective pursuant to the terms of the Registration
Rights Agreement, the effectiveness of the applicable Registration Statement lapses for any reason (including, without
limitation, the issuance of a stop order) or is unavailable to any holder of the Notes for sale of all of such holder’s
Registrable Securities in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability
continues for a period of ten (10) consecutive Trading Days or for more than an aggregate of fifteen (15) Trading Days in any
365-day period (other than days during an Allowable Grace Period (as defined in the Registration Rights Agreement));


 


2. the
Company’s failure to pay to the Holder any amount of Principal, Interest, Late Charges, Redemption Price or other
amounts when and as due under this Note or any other Transaction Document, except, in the case of a failure to pay Interest
and/or Late Charges when and as due, in which case only if such failure continues for a period of at least an aggregate of
two (2) Business Days;


 


3. any
acceleration or default-triggered redemption or conversion prior to maturity of any Indebtedness or preferred equity of the
Parent Guarantor and/or any of its Subsidiaries in an aggregated principal amount and/or stated amount in excess of
$10,000,000;


 


4. the
Parent Guarantor or any of its Subsidiaries, pursuant to or within the meaning of Title 11, U.S. Code, or any similar
federal, foreign or state law for the relief of debtors (collectively, “Bankruptcy Law”), (A) commences a
voluntary case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to
the appointment of a receiver, trustee, assignee, liquidator or similar official (a “Custodian”), (D)
makes a general assignment for the benefit of its creditors or (E) admits in writing that it is generally unable to pay
its debts as they become due;


 


5. a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Parent
Guarantor or any of its Subsidiaries in an involuntary case, (B) appoints a Custodian of the Parent Guarantor or any of its
Subsidiaries or (C) orders the liquidation of the Parent Guarantor or any of its Subsidiaries;


 


6. one
or more judgments, orders or awards for the payment of money aggregating (above any insurance coverage or indemnity from a
credit worthy party so long as the Parent Guarantor provides the Holder a written statement from such insurer or indemnity
provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment, order or
award is covered by insurance or an indemnity and the Parent Guarantor will receive the proceeds of such insurance or
indemnity within thirty (30) days of the issuance of such judgment, order or award) in excess of $20,000,000 are rendered
against the Parent Guarantor or any of its Subsidiaries and which judgments, orders or awards are not, within thirty (30)
days after the entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within thirty (30) days
after the expiration of such stay;


 


7.
other than as specifically set forth in another clause of this Section 4(a), the Parent Guarantor or any of its Subsidiaries
breaches any representation, warranty, covenant or other term or condition set forth in this Note, except, in the case of a
breach of a covenant or other term or condition of any such agreement which is curable, only if such breach continues for a
period of at least an aggregate of twenty (20) days;


 


 


 


 






    	 	A-3	 



     

    

 


8. if
the Holder is a Designee, other than as specifically set forth in another clause of this Section 4(a), the Parent Guarantor
or any of its Subsidiaries breaches any representation, warranty, covenant or other term or condition set forth in Sections
3(b), 3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(l), 3(p), 3(q), 3(r), 3(v), 3(ee), 3(ii), 3(mm), 3(nn), 3(qq), 4(v) or 4(z) of
the Securities Purchase Agreement, except, in the case of a breach of a covenant or other term or condition of any such
agreement which is curable, only if such breach continues for a period of at least an aggregate of thirty (30) days;


 


9. any
breach or failure in any respect to comply with Section 10 of this Note, except, in the case of a breach or a failure
which is curable, only if such breach continues for a period of at least an aggregate of thirty (30) days;


 


10. any
material provision of any Security Document (as determined by the Collateral Agent) shall at any time for any reason
(other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against the Parent
Guarantor or any Subsidiary intended to be a party thereto, or the validity or enforceability thereof shall be contested by
any party thereto, or a proceeding shall be commenced by the Parent Guarantor or any Subsidiary or any governmental authority
having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or the Parent
Guarantor or any Subsidiary shall deny in writing that it has any liability or obligation purported to be created under any
Security Document;


 


11. any
Security Document or any other security document, after delivery thereof pursuant hereto, shall for any reason fail or cease
to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien in
favor of the Collateral Agent for the benefit of the holders of the Notes on any Collateral purported to be covered
thereby;


 


12. any
bank at which any deposit account, blocked account, or lockbox account of the Parent Guarantor or any Subsidiary is
maintained shall fail to comply with any material term of any deposit account, blocked account, lockbox account or similar
agreement to which such bank is a party or any securities intermediary, commodity intermediary or other financial institution
at any time in custody, control or possession of any investment property of the Parent Guarantor or any Subsidiary shall fail
to comply with any of the terms of any investment property control agreement to which such Person is a party (it being
understood that only accounts pursuant to which the Collateral Agent has requested account control agreements should be
subject to this clause (xii));


 


13. a
false or inaccurate certification (including a false or inaccurate deemed certification) by the Company as to whether any
Event of Default has occurred;


 


14. the
Parent Guarantor fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the Holder
upon conversion or exercise (as the case may be) of any Securities (as defined in the Securities Purchase Agreement) acquired
by the Holder under the Securities Purchase Agreement as and when required by such Securities, the Certificate of
Designations or the Securities Purchase Agreement, unless otherwise then prohibited by applicable federal securities laws,
and any such failure remains uncured for at least five (5) consecutive Trading Days;


 


15. the
Company or the Parent Guarantor becomes 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;


 


 


 


 






    	 	A-4	 



     

    

 


16. (A)
the suspension of the Common Stock from trading on an Eligible Market for a period of five (5) consecutive Trading Days or
for more than an aggregate of fifteen (15) Trading Days in any 365-day period or (B) the failure of the Common Stock to be
listed on an Eligible Market;


 


17. at
any time following the fifth (5th) consecutive Business Day after an Authorized Share Failure (as defined in the
Series B Warrants), except, solely with respect to the first occurrence of an Authorized Share Failure hereunder, to the
extent the Parent Guarantor is complying with the terms set forth in Section 1(h) of the Series B Warrants;


 


18. the
Parent Guarantor does not directly or indirectly own 100% of the Equity Interests of the Company;


 


19. any
Event of Default (as defined in the Other Notes) occurs with respect to any Other Notes;


 


20. any
Event of Default (as defined in the Additional Notes) occurs with respect to any Additional Notes; or


 


21. the
failure to deliver the certificate as required by Section 10(h).


 


B. Redemption
Right. At any time after the earlier of the Holder’s receipt of an Event of Default Notice (as defined in Section
10(e)) and the Holder becoming aware of an Event of Default, the Holder may require the Company to redeem (an “Event
of Default Redemption”) all or any portion of this Note by delivering written notice thereof (the “Event
of Default Redemption Notice”) to the Company, which Event of Default Redemption Notice shall indicate the portion
of this Note the Holder is electing to require the Company to redeem. Each portion of this Note subject to redemption by the
Company pursuant to this Section 4(b) shall be redeemed by the Company in cash by wire transfer of immediately available
funds at a price equal to the Redemption Amount being redeemed, plus, only in the cases of an Event of Default
Redemption pursuant to Section 4(a)(xvi) or Section 4(a)(xvii), an amount in cash equal to the product obtained by
multiplying (A) the number of shares of Common Stock issuable upon exercise of the Series B Warrants (without regard to any
limitations on exercise set forth in the Series B Warrants) held by the Holder at the time the Company pays the applicable
Event of Default Redemption Price (as defined below) to the Holder and (B) the excess, if any, of (1) the highest Closing
Sale Price (as defined in the Warrants) of the shares of Common Stock during the period beginning on the date immediately
preceding such Event of Default and ending on the date the Holder delivers the related Event of Default Redemption Notice,
over (2) the lowest Other Exercise Price in effect during such period (the “Event of Default Redemption
Price”). Redemptions required by this Section 4(b) shall be made in accordance with the provisions of Section 8. To
the extent redemptions required by this Section 4(b) are deemed or determined by a court of competent jurisdiction to be
prepayments of the Note by the Company, such redemptions shall be deemed to be voluntary prepayments. The Company and the
Holder agree that in the event of the Company’s redemption of any portion of the Note under this Section 4(b), the
Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future
interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder.
Accordingly, any 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.


 


C. Mandatory
Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, 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 the applicable Event of Default Redemption Price, without the requirement for any notice or
demand or other action by the Holder or any other Person; provided that the Holder may, in its sole and absolute
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 and any right to payment of the Event of Default Redemption Price or any other Redemption Price, as applicable.
Redemptions required by this Section 4(c) shall be made in accordance with the provisions of Section 8.


 


 


 


 






    	 	A-5	 



     

    

 


RIGHTS UPON FUNDAMENTAL
TRANSACTION AND CHANGE OF CONTROL.


 


D. Assumption.
Upon the occurrence or consummation of any Fundamental Transaction with respect to the Company or the Parent Guarantor, and
it shall be a required condition to the occurrence or consummation of any Fundamental Transaction that, the Company or the
Parent Guarantor, as applicable, and the Successor Entity or Successor Entities, jointly and severally, shall succeed to the
Company or the Parent Guarantor, as applicable, and the Company or the Parent Guarantor, as applicable, shall cause any
Successor Entity or Successor Entities to jointly and severally succeed to the Company or the Parent Guarantor, as
applicable, and be added to the term “Company” or “Parent Guarantor,” as applicable, under this Note
(so that from and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Note
referring to the “Company” or the “Parent Guarantor,” as applicable, shall refer instead to each of
the Company or the Parent Guarantor, as applicable, and the Successor Entity or Successor Entities, jointly and severally),
and the Successor Entity or Successor Entities, jointly and severally with the Company or the Parent Guarantor, as
applicable, may exercise every right and power of the Company or the Parent Guarantor, as applicable, prior thereto and the
Successor Entity or Successor Entities shall assume all of the obligations of the Company or the Parent Guarantor, as
applicable, prior thereto under this Note with the same effect as if the Company or the Parent Guarantor, as applicable, and
such Successor Entity or Successor Entities, jointly and severally, had been named as the Company or the Parent Guarantor, as
applicable, in this Note. The provisions of this Section 5(a) shall apply similarly and equally to successive Fundamental
Transactions.


 


E. Redemption
Right. Not less than ten (10) days prior to the consummation of a Change of Control, the Company shall deliver written
notice thereof to the Holder (a “Change of Control Notice”) setting forth a description of such
transaction in reasonable detail and the anticipated date of the consummation of such Change of Control if then known. At any
time during the period beginning on the earliest to occur of (x) the public announcement of any oral or written agreement by
the Parent Guarantor or any of its Subsidiaries, upon consummation of which the transaction contemplated thereby would
reasonably be expected to result in a Change of Control, (y) the Holder’s receipt of a Change of Control Notice, and
(z) the consummation of such transaction which results in a Change of Control, and ending twenty-five (25) Trading Days after
the date of the consummation of such Change of Control, the Holder may require the Company to redeem all or any portion of
this Note by delivering written notice thereof (a “Holder Change of Control Redemption Notice”) to the
Company, which Holder Change of Control Redemption Notice shall indicate the Redemption Amount the Holder is electing to
require the Company to redeem. Within ten (10) days before or after the applicable Change of Control, the Company may redeem
(a “Company Change of Control Redemption”) all but not less than all of this Note by delivering written
notice (a “Company Change of Control Redemption Notice” and, together with a Holder Change of Control
Redemption Notice, a “Change of Control Redemption Notice”) to the Holder, which Company Change of Control
Redemption Notice shall indicate the Redemption Amount that is subject to such Company Change of Control Redemption; provided,
that a Company Change of Control Redemption shall only be permitted with respect to a Change of Control in which one hundred
percent (100%) of the Equity Interests of the Company is purchased for cash and/or Cash Equivalents. If the Company elects to
cause a Company Change of Control Redemption pursuant to this Section 5(b), then it must simultaneously take the same
action with respect to all Other Notes and Additional Notes then outstanding. The portion of this Note subject to redemption
pursuant to this Section 5(b) shall be redeemed by the Company in cash by wire transfer of immediately available funds at a
price equal to the sum of (A) the Redemption Amount of the Notes being redeemed and (B) the Make-Whole Amount (the
“Change of Control Redemption Price”). Redemptions required by this Section 5 shall be made in accordance
with the provisions of Section 8 and shall have priority to payments to stockholders in connection with a Change of Control.
To the extent redemptions required by this Section 5(b) are deemed or determined by a court of competent jurisdiction to be
prepayments of the Note by the Company, such redemptions shall be deemed to be voluntary prepayments. The parties hereto
agree that in the event of the Company’s redemption of any portion of the Note under this Section 5(b), the
Holder’s damages would be uncertain and difficult to estimate because of the parties’ inability to predict future
interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for the Holder.
Accordingly, any 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.


 


[Reserved]


 


 


 


 






    	 	A-6	 



     

    

 


NONCIRCUMVENTION.
Each of the Company and the Parent Guarantor hereby covenants and agrees that such Person will not, by amendment of its Certificate
of Incorporation or Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution,
issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Note, and will at all times in good faith carry out all of the provisions of this Note and take all action as may
be required to protect the rights of the Holder.


 


REDEMPTIONS.


 


F. Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder within three (3) Business Days after
the Company’s receipt of the Holder’s Event of Default Redemption Notice; provided that upon a Bankruptcy
Event of Default, the Company shall deliver the applicable Event of Default Redemption Price in accordance with Section 4(c)
(as applicable, the “Event of Default Redemption Date”). If the Holder or the Company has submitted a
Change of Control Redemption Notice in accordance with Section 5(b), the Company shall deliver the applicable Change of
Control Redemption Price to the Holder (i) concurrently with the consummation of such Change of Control if such notice
is received prior to the consummation of such Change of Control and (ii) within three (3) Business Days after the delivery to
the Company or the Holder, as applicable, of such notice otherwise (such date, the “Change of Control Redemption
Date”). The Company shall pay the applicable Redemption Price to the Holder in cash by wire transfer of immediately
available funds pursuant to wire instructions provided by the Holder in writing to the Company on the applicable due date. In
the event of a redemption of less than all of the Redemption Amount of this Note, the Company shall promptly cause to be
issued and delivered to the Holder a new Note (in accordance with Section 13(d)) representing the outstanding Principal which
has not been redeemed and any accrued Interest on such Principal which shall be calculated as if no Redemption Notice has
been delivered. In the event that the Company does not pay 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 Redemption 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 Redemption Amount and (y) the Company shall
immediately return this Note, or issue a new Note (in accordance with Section 13(d)) to the Holder representing such
Redemption Amount to be redeemed. 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 any amount, including
Late Charges, which have accrued prior to the date of such notice with respect to the Redemption Amount subject to such
notice.


 


G. Redemption
by Other Holders. Upon the Company’s or the Parent Guarantor’s receipt of notice from or on behalf of any of
the holders of the Other Notes or the Additional Securities, if any, for redemption or repayment as a result of an event or
occurrence substantially similar to the events or occurrences described in Section 4(b) or Section 5(b) or pursuant to
analogous provisions set forth in the Other Notes, the Additional Notes or the Certificate of Designations (each, an
“Other Redemption Notice”), the Company or the Parent Guarantor (as applicable) shall promptly, but no
later than one (1) Business Day of its receipt thereof, forward to the Holder a copy of such notice. If the Company or the
Parent Guarantor receives a Redemption Notice and one or more Other Redemption Notices, during the seven (7) Business Day
period beginning on and including the date which is three (3) Business Days prior to such Person’s receipt of the
Holder’s Redemption Notice and ending on and including the date which is three (3) Business Days after such
Person’s receipt of the Holder’s Redemption Notice and the Company is unable to redeem the entire Redemption
Prices and such other amounts designated in such Redemption Notice and such Other Redemption Notices received during such
seven (7) Business Day period, then the Company shall redeem a pro rata amount from the Holder and each holder of the Other
Notes and the Additional Securities, if any, based on the Principal amount of this Note, the principal amount of the Other
Notes and the Additional Notes and/or the Stated Value of the Series A Preferred Shares submitted for redemption pursuant to
such Redemption Notice and such Other Redemption Notices received by the Company or the Parent Guarantor during such seven
(7) Business Day period.


 


SECURITY. This
Note and the Other Notes are secured to the extent and in the manner set forth in the Security Documents.


 


 


 


 






    	 	A-7	 



     

    

 


COVENANTS.


 


H. Limitation
on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.


 


1. The Parent
Guarantor shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any shares of Disqualified Stock and the Parent Guarantor shall not permit any of
its Subsidiaries to issue any shares of Preferred Stock; provided, however, such limitations shall not apply to
(collectively, “Permitted Debt”):


 


a. the Incurrence
by the Parent Guarantor or any of its Subsidiaries of Indebtedness under any Credit Facilities in an aggregate principal
amount outstanding at any time not to exceed the lesser of (i) $100.0 million and (ii) the Available Amount Basket;


 


b. the Incurrence
by the (i) Company of Indebtedness represented by the Notes, Other Notes and the Additional Company Notes, (ii) Parent
Guarantor of Indebtedness represented by the Additional Parent Guarantor Notes and (iii) Guarantors of Indebtedness
represented by the Guarantees issued with respect to the Notes, Other Notes and the Additional Notes;


 


c. Indebtedness,
Disqualified Stock and Preferred Stock existing on the Subscription Date and Series A Preferred Shares issued pursuant to the
Securities Purchase Agreement (other than Indebtedness described in clause (1) of this Section 10(a)(i));


 


d. Indebtedness
with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit, acceptances and
similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit and bank
guarantees issued in the ordinary course of business, including, without limitation, letters of credit in respect of
workers’ compensation claims, health, disability or other employee benefits (whether current or former) or property,
casualty or liability insurance, or other Indebtedness with respect to reimbursement-type obligations regarding
workers’ compensation claims; provided, however, that upon the drawing of such letters of credit, such
obligations are reimbursed within thirty (30) days following such drawing;


 


e. Indebtedness arising from agreements
of the Company or a Guarantor providing for indemnification, adjustment of purchase price, deferred purchase price, earn-out
or similar obligations, in each case, Incurred in connection with any acquisition or disposition of any business, assets or a
Subsidiary of the Parent Guarantor or assumed, other than guarantees of Indebtedness Incurred by any Person acquiring all or
any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided that any
such payment shall be deemed to be an Investment;


 


f. Indebtedness of
the Parent Guarantor to the Company or a Guarantor; provided that any subsequent issuance or transfer of any Capital
Stock or any other event which results in any such Guarantor ceasing to be a Guarantor or any other subsequent transfer of
any such Indebtedness (except to a Guarantor or the Company) shall be deemed, in each case to be an Incurrence of such
Indebtedness;


 


g. shares of
Preferred Stock of the Company or a Guarantor issued to the Company or a Guarantor; provided that any subsequent
issuance or transfer of any Capital Stock or any other event that results in the Company or any Guarantor that holds such
shares of Preferred Stock of another Guarantor ceasing to be a Guarantor or any other subsequent transfer of any such shares
of Preferred Stock (except to the Company or another Guarantor) shall be deemed, in each case, to be an issuance of shares of
Preferred Stock;


 


h. Indebtedness of
the Company or a Guarantor to the Company or another Guarantor; provided that any subsequent issuance or transfer of
any Capital Stock or any other event which results in any Guarantor lending such Indebtedness ceasing to be a Guarantor or
any other subsequent transfer of any such Indebtedness (except to the Company or another Guarantor) shall be deemed, in each
case, to be an Incurrence of such Indebtedness;


 


i. obligations in
respect of self-insurance and obligations (including reimbursement obligations with respect to letters of credit and bank
guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and completion
guarantees and similar obligations provided by the Parent Guarantor or any Subsidiary, in each case, incurred in the ordinary
course of business;


 


 


 


 






    	 	A-8	 



     

    

 


j. any guarantee or
co-issuance by the Company or a Guarantor of Indebtedness or other obligations of the Company or any Guarantor so long as the
Incurrence of such Indebtedness or other obligations by the Company or such Guarantor is not prohibited under the terms of
this Note; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Notes and the
Additional Notes or the Guarantee of such Guarantor, as applicable, any such guarantee or co-issuance of such Guarantor with
respect to such Indebtedness shall be subordinated in right of payment to such Guarantor’s Guarantee with respect to
the Notes and Additional Notes substantially to the same extent as such Indebtedness is subordinated to the Notes and
Additional Notes or the Guarantee of such Guarantor, as applicable;


 


k. the Incurrence
by the Company or any Guarantor of Indebtedness or Disqualified Stock or Preferred Stock of a Guarantor which serves to
refund, refinance, replace, renew, extend or defease any Indebtedness, Disqualified Stock or Preferred Stock Incurred as
permitted under clauses (2), (3) and (11) of this Section 10(a)(i) or any Indebtedness, Disqualified Stock or Preferred Stock
Incurred to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, including any Indebtedness,
Disqualified Stock or Preferred Stock Incurred to pay premiums (including lender premiums), defeasance costs, accrued
interest, fees and expenses in connection therewith (subject to the following proviso, “Refinancing
Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing
Indebtedness:


 


(1) has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the remaining
Weighted Average Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded or refinanced,
replaced, renewed, extended or defeased;


 


(2) has a Stated
Maturity which is no earlier than ninety one (91) days after the Maturity Date;


 


(3) to the extent
such Refinancing Indebtedness refinances (x) Indebtedness junior to the Notes and the Additional Notes or the Guarantee of
such Guarantor, as applicable, such Refinancing Indebtedness is junior to the Notes and the Additional Notes or the Guarantee
of such Guarantor, as applicable, or (y) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified
Stock or Preferred Stock; and


 


(4) is Incurred
in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or
less than the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then
outstanding of the Indebtedness being refinanced plus premium and fees Incurred in connection with such refinancing;


 


l. Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business; provided, that such Indebtedness is extinguished within ten
(10) Business Days of its Incurrence;


 


m. Indebtedness of
the Company or any Guarantor consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations contained
in supply arrangements, in each case, in the ordinary course of business;


 


n. Indebtedness of
the Company or any Guarantor Incurred in the ordinary course of business under guarantees of Indebtedness of suppliers,
licensees, franchisees or customers;


 


o. to the extent
constituting Indebtedness, obligations in respect of (A) customer deposits and advance payments received in the ordinary
course of business, (B) letters of credit, bankers’ acceptances, guarantees or other similar instruments or obligations
issued or relating to liabilities or obligations Incurred in the ordinary course of business and (C) any customary cash
management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary
course of business;


 


 


 


 






    	 	A-9	 



     

    

 


p. Indebtedness to
current or former officers, managers, consultants, directors and employees, their respective estates, spouses or former
spouses to finance the purchase or redemption of Equity Interests of the Parent Guarantor permitted by this Note;


 


q. Indebtedness in
connection with a Qualified Receivables Financing;


 


r. the incurrence
of contingent liabilities arising out of endorsements of checks, drafts and other similar instruments for deposit or
collection in the ordinary course of business;


 


s. Indebtedness of
the Parent Guarantor and its Subsidiaries, to the extent the net proceeds thereof are promptly used to purchase all of this
Note, the Other Notes and the Additional Notes in connection with a Change of Control;


 


t. Indebtedness
incurred by the Company or any Guarantor; provided, that (i) the net proceeds of such Indebtedness will be used to
prepay other outstanding Indebtedness of the Company or any Guarantor and (ii) such Indebtedness is thereafter promptly
assumed, retired or otherwise repaid by a Person (other than the Parent Guarantor or any Subsidiary) and upon such
assumption, retirement or other repayment, such Indebtedness is non-recourse to the Parent Guarantor or any Subsidiary;


 


u. Indebtedness in
respect of an acquisition permitted hereunder, which Indebtedness is not incurred in connection with such acquisition by the
Parent Guarantor or any Subsidiary in contemplation of such acquisition and such Indebtedness is existing at the time such
Person becomes a Subsidiary of the Parent Guarantor or a Guarantor (other than Indebtedness incurred solely in contemplation
of such Person becoming a Subsidiary of the Parent Guarantor or a Guarantor), in an aggregate principal amount outstanding at
any time not to exceed $20.0 million; and


 


v. Indebtedness in
respect of margin loans not to exceed $10,000,000 in the aggregate


 


2. For purposes of
determining compliance with this Section 10(a), in the event that an item of Indebtedness, Disqualified Stock or
Preferred Stock meets the criteria of more than one of the categories of Permitted Debt, the Company and Parent Guarantor
shall, in their sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such item of
Indebtedness, Disqualified Stock or Preferred Stock in any manner that complies with this Section 10(a) and such item of
Indebtedness, Disqualified Stock or Preferred Stock shall be treated as having been Incurred pursuant to only one of the
clauses in Section 10(a)(i), but may be Incurred partially under one clause and partially under one or more other clauses.
Accrual of interest, the accretion of accreted value, the amortization or accretion of original issue discount, the payment
of interest in the form of additional Indebtedness with the same terms, the payment of dividends on Preferred Stock in the
form of additional shares of Preferred Stock of the same class, the accretion of liquidation preference and increases in the
amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies shall not be deemed
to be an Incurrence of Indebtedness for purposes of this Section 10(a) or Section 10(d). Any Indebtedness under a revolving
credit or similar facility shall only be deemed to be Incurred at the time funds are borrowed. Guarantees of, or obligations
in respect of letters of credit, bankers’ acceptances or similar instruments relating to, or Liens securing,
Indebtedness which are otherwise included in the determination of a particular amount of Indebtedness shall not be included
in the determination of such amount of Indebtedness; provided, that the Incurrence of the Indebtedness represented by
such guarantee or letter of credit, as the case may be, was in compliance with this Section 10(a). Indebtedness that is cash
collateralized shall not be deemed to be Indebtedness hereunder to the extent of such cash collateralization. The principal
amount of any Disqualified Stock or Preferred Stock will be equal to the greater of the maximum mandatory redemption or
repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference
thereof.


 


 


 


 






    	 	A-10	 



     

    

 


I. Limitation
on Restricted Payments.


 


1. The Parent
Guarantor shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:


 


a. declare or pay
any dividend or make any distribution on account of the Parent Guarantor’s or any of its Subsidiaries’ Equity
Interests, including any payment made in connection with any merger or consolidation involving the Parent Guarantor (other
than (A) dividends, payments or distributions by the Parent Guarantor payable solely in Equity Interests (other than
Disqualified Stock) of the Parent Guarantor or in options, warrants or other rights to purchase such Equity Interests, or (B)
dividends, payments or distributions by a Subsidiary so long as, in the case of any dividend, payment or distribution payable
on or in respect of any class or series of securities issued by a Subsidiary other than a Subsidiary of the Parent Guarantor
that is a Wholly Owned Subsidiary of the Parent Guarantor, the Parent Guarantor or a Subsidiary receives at least its pro
rata share of such dividend or distribution in accordance with its Equity Interests in such class or series of
securities);


 


b. purchase or
otherwise acquire or retire for value any Equity Interests of the Parent Guarantor held by any Person other than the Parent
Guarantor or a Subsidiary;


 


c. make any
principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case prior to any
scheduled repayment or scheduled maturity, any Subordinated Indebtedness (other than the payment, redemption, repurchase,
defeasance, acquisition or retirement of (A) Subordinated Indebtedness in anticipation of satisfying a sinking fund
obligation, principal installment or final maturity, in each case due within one year of the date of such payment,
redemption, repurchase, defeasance, acquisition or retirement and (B) Indebtedness permitted under clauses (6) and (8) of
Section 10(a)(ii)); or


 


d. make any
Restricted Investment


 


(all such payments and
other actions set forth in clauses (1) through (4) above being collectively referred to as “Restricted Payments”).


 


2. The provisions
of Section 10(b)(i) shall not prohibit:


 


a. the payment of
any dividend or distribution or the consummation of any irrevocable redemption within sixty (60) days after the date of
declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration such payment or
the giving of such notice would have complied with the provisions of this Note (assuming, in the case of a redemption
payment, the giving of such notice would have been deemed a Restricted Payment at such time and such deemed Restricted
Payment would have been permitted at such time);


 


b. (A) the redemption,
repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”) of the Parent
Guarantor or Subordinated Indebtedness of the Company or any Guarantor in exchange for (including any such exchange pursuant to
the exercise of a conversion right or privilege in connection with which cash is paid in lieu of fractional shares), or out of
the proceeds of the substantially concurrent sale of, Equity Interests of the Parent Guarantor or contributions to the equity capital
of the Parent Guarantor (other than any Disqualified Stock or any Equity Interests sold to a Guarantor or to an employee stock
ownership plan or any trust established by the Company or any Guarantor to the extent funded by the Parent Guarantor and its Subsidiaries)
(collectively, including any such contributions, “Refunding Capital Stock”); and (B) the declaration and payment
of accrued dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale (other than to a Subsidiary
of the Parent Guarantor or to an employee stock ownership plan or any trust established by the Parent Guarantor or any of its Subsidiaries)
of Refunding Capital Stock;


 


c. the redemption,
defeasance, repurchase or other acquisition or retirement of (x) Subordinated Indebtedness of the Company or any Guarantor
made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the Company or any
Guarantor or (y) Disqualified Stock of the Company or any Guarantor made in exchange for, or out of the proceeds of a
substantially concurrent sale of, Disqualified Stock of the Company or any Guarantor, in either case which constitutes
Refinancing Indebtedness under Section 10(a)(i)(11);


 


 


 


 






    	 	A-11	 



     

    

 


d. the repurchase,
retirement or other acquisition or retirement for value of Equity Interests of the Parent Guarantor held by any future,
present or former employee, director or consultant of the Parent Guarantor or any Subsidiary of the Parent Guarantor (or the
relevant Person’s estate or beneficiary of such Person’s estate) pursuant to any management equity plan or stock
option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however,
that the aggregate amounts paid under this clause (4) do not exceed $2.5 million in any calendar year (with unused amounts in
any calendar year being permitted to be carried over for succeeding calendar years up to a maximum of $5.0 million in the
aggregate in any calendar year);


 


e. (a) the declaration
and payment of dividends or distributions to holders of any class or series of Disqualified Stock of the Parent Guarantor or Disqualified
Stock or Preferred Stock of the Company or any Guarantor and (b) the payment of any redemption price or liquidation value of any
such Disqualified Stock or Preferred Stock when due in accordance with its terms, in each case, Incurred in accordance with Section
10(a);


 


f. the declaration
and payment of dividends or other distributions or payments to holders of Series A Preferred Shares, Series A Warrants or
Series B Warrants pursuant to their terms;


 


g. other Restricted
Payments in an aggregate amount since the Original Issuance Date not to exceed the greater of (x) $10.0 million and (y) 2.5%
of Total Assets at the time of such Restricted Payment;


 


h. repurchases of
Equity Interests deemed to occur upon exercise of stock options or warrants or other rights if such Equity Interests
represent a portion of the exercise price of such options or warrants and payments in cash in lieu of the issuance of
fractional shares;


 


i. purchases of
receivables pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables Financing and the
payment or distribution of Receivables Fees;


 


j. the payment,
purchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness, Disqualified
Stock or Preferred Stock of the Company or a Guarantor pursuant to provisions similar to those described under Section 5(b); provided
that, prior to or concurrently with such payment, purchase, redemption, defeasance or other acquisition or retirement for
value, the Company (or a third party to the extent permitted by this Note) have satisfied all obligations pursuant to Section
5(b); and


 


k. distributions or
payments of Receivables Fees, sales contributions and other transfers of and purchases of assets pursuant to repurchase
obligations, in each case in connection with a Qualified Receivables Financing;


 


l. the making of
any Restricted Payment in exchange for, or out of or with the net cash proceeds from the substantially concurrent
contribution to the common equity of the Parent Guarantor or from the substantially concurrent sale (other than to a
Subsidiary of the Parent Guarantor) of, Equity Interests (other than Disqualified Stock) of the Parent Guarantor; and


 


m. the payment of
cash in lieu of the issuance of fractional shares of Equity Interests in connection with any dividend or split of, or upon
exercise or conversion of warrants, options or other securities exercisable or convertible into, Equity Interests of the
Parent Guarantor or in connection with the issuance of any dividend otherwise permitted to be made.


 


3. For purposes of
this Section 10(b), if any Investment or Restricted Payment would be permitted pursuant to one or more provisions described
above and/or one or more of the exceptions contained in the definition of “Permitted Investments,” the Company
and the Parent Guarantor may classify such Investment or Restricted Payment in any manner that complies with this covenant
and may later reclassify any such Investment or Restricted Payment so long as such Investment or Restricted Payment (as so
reclassified) would be permitted to be made in reliance on the applicable exception as of the date of such
reclassification.


 


 


 


 






    	 	A-12	 



     

    

 


J. Guarantees.
The Parent Guarantor may cause any Subsidiary to execute and deliver to the Holder and the holders of the Other Notes, a
Guarantee Agreement in the form of Exhibit E attached to the Securities Purchase Agreement pursuant to which such Subsidiary
shall guarantee payment of the Notes.


 


K. Limitation
on Liens.


 


1. Neither the
Parent Guarantor nor any of its Subsidiaries may issue, assume or guarantee any Indebtedness secured by a Lien (other than a
Permitted Lien) upon any asset or property of the Parent Guarantor or such Subsidiary or on any evidences of Indebtedness or
shares of Capital Stock of, or other ownership interests in, any Subsidiary (regardless of whether the asset, property,
Indebtedness, Capital Stock or ownership interests were acquired before or after the date hereof).


 


2. For purposes of
this Section 10(d), if any Lien would be permitted pursuant to one or more of the exceptions contained in the definition of
“Permitted Lien,” the Company and the Parent Guarantor may classify such Lien in any manner that complies with
this covenant and may later reclassify any such Lien so long as such Lien (as so reclassified) would be permitted to be made
in reliance on the applicable exception as of the date of such reclassification.


 


L. Notices.
The Company shall promptly, but in any event within one (1) Business Day, notify the Holder in writing whenever an Event of
Default (an “Event of Default Notice”) occurs, and, to the extent required pursuant to Section 24, the
Parent Guarantor shall simultaneously with the delivery of such notice to the Holder, file a Current Report on Form 8-K with
the SEC to state such fact.


 


M. Minimum
Cash Covenants. The Parent Guarantor (not including its Subsidiaries) shall maintain on deposit unrestricted and
unencumbered cash and/or Marketable Securities in an aggregate amount equal to not less than $25,000,000. In addition,
Subsidiaries of the Parent Guarantor, other than (x) Acacia Research Group, LLC (“ARG”) and (y) the
Subsidiary of the Parent Guarantor, other than ARG, that holds the greatest amount of unrestricted and unencumbered cash and
or Marketable Securities, shall maintain on deposit unrestricted and unencumbered cash and/or Marketable Securities in an
aggregate amount equal to not less than $25,000,000.


 


N. Non-Guarantor
Subsidiaries.


 


1. The Parent
Guarantor shall not permit any of its Subsidiaries that are not Guarantors (“Non-Guarantor Subsidiaries”)
to, directly or indirectly:


 


a. Incur any
Indebtedness (including Acquired Indebtedness) or issue any shares of Disqualified Stock and the Parent Guarantor shall not
permit any of the Non-Guarantor Subsidiaries to issue any shares of Preferred Stock;


 


b. assume or
guarantee any Indebtedness secured by a Lien upon any asset or property of such Non-Guarantor Subsidiary or on any evidences
of Indebtedness or shares of Capital Stock of, or other ownership interests in, any Non-Guarantor Subsidiary (regardless of
whether the asset, property, Indebtedness, Capital Stock or ownership interests were acquired before or after the date
hereof);


 


c. hire any
employees or enter into any leases, except (i) if done by ARG in the ordinary course of business or (ii) if required by
applicable law; and


 


 


 


 






    	 	A-13	 



     

    

 


d. Except for ARG,
engage in any business activities or have any material properties or liabilities, other than (i) activities related to the
maintenance of its corporate existence, (ii) activities related to their ordinary course activities of purchasing
Intellectual Property, (iii) activities related to their ordinary course activities of retaining legal counsel to represent
such non-guarantor subsidiary as a plaintiff in Intellectual Property litigation, (iv) activities to comply with applicable
law, (v) transactions among the Parent Guarantor and its Subsidiaries in their ordinary course of business, (vi) with respect
to AMO Holdco LLC, Viamet Holdco LLC and Malin J1 Limited, holding the assets and being party to those agreements listed on
Schedule F of that certain Second Supplemental Agreement, dated as of March [●], 2021, by and among Parent Guarantor,
the Company, certain of other direct and indirect subsidiaries of the Parent Guarantor, Starboard Value LP and Starboard
Value Intermediate Fund LP, and such other assets that AMO Holdco LLC and Viamet Holdco LLC may hold as a result of
dividends, distributions or similar corporate transactions that AMO Holdco LLC, Viamet Holdco LLC and Malin J1 Limited may be
entitled to as a result of holding such assets or ordinary course activities related to holding such assets, and (vii)
activities, liabilities and properties incidental to the foregoing clauses (i) through (iv), with all such liabilities in
total not to exceed an aggregate of $5,000,000 among all non-guarantor subsidiaries as a whole and $1,000,000 for each
non-guarantor subsidiary individually, excluding legal and professional fees and royalty sharing
arrangements accrued in the ordinary course of the patent assertion business.


 


2. ARG may maintain
a balance of Cash and Marketable Securities of no more than $10,000,000 solely in order to conduct its ordinary course
business activities.


 


O. Investment
Company Status. Between six (6) Business Days and four (4) Business Days prior to the end of each fiscal quarter
beginning with the fiscal quarter ended June 30, 2021, the Parent Guarantor shall deliver a certificate signed by an
executive officer of the Parent Guarantor to the Holder certifying that the Company reasonably expects that, following the
delivery of the Parent Guarantor’s financial statements for such quarter, neither the Parent Guarantor nor any
subsidiary of the Parent Guarantor will be an “investment company,” a company controlled by an “investment
company” or an “affiliated person” of, or “promoter” or “principal underwriter”
for, an “investment company”, in each case as such terms are defined in the Investment Company Act of 1940, as
amended.


 


VOTE TO ISSUE, OR
CHANGE THE TERMS OF, NOTES. The affirmative vote of the Required Holders at a meeting duly called for such purpose or the written
consent without a meeting of the Required Holders, voting together as a single class, shall be required for any change or amendment
or waiver of any provision to this Note, any of the Other Notes or any of the Additional Company Notes. Any change, amendment or
waiver by the Company and the Required Holders shall be binding on the Holder of this Note and all holders of the Other Notes and
the Additional Company Notes. No consideration shall be offered or paid to any of the holders of Notes or Additional Company Notes
to amend or waive or modify any provision of the Notes, unless the same consideration (other than the reimbursement of legal fees)
is also offered to all of the holders of Notes and Additional Notes. This provision constitutes a separate right granted to each
of the holders of Notes and Additional Notes by the Company and shall not in any way be construed as such holders acting in concert
or as a group with respect to the purchase, disposition or voting of securities or otherwise.


 


TRANSFER. The
Holder may offer, sell, assign or transfer all or any portion of this Note and the accompanying rights hereunder without the consent
of the Company, subject only to the provisions of Section 2(f) of the Securities Purchase Agreement.


 


REISSUANCE OF THIS
NOTE.


 


P. Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will within
five (5) Business Days of such surrender, issue and deliver upon the order of the Holder a new Note (in accordance with
Section 13(d) and subject to Section 3), registered as the Holder may request, representing the outstanding Principal being
transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new Note (in accordance
with Section 13(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee,
by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3 following cancellation
pursuant to Section 26 or redemption of any portion of this Note, the outstanding Principal represented by this Note may be
less than the Principal stated on the face of this Note.


 


 


 


 






    	 	A-14	 



     

    

 


Q. Lost,
Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss,
theft, destruction or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification
undertaking by the Holder to the Company in customary form (but without any obligation to post a surety or other bond) and,
in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder
a new Note (in accordance with Section 13(d)) representing the outstanding Principal within five (5) Business Days of receipt
of such evidence.


 


R. 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 within five (5) Business Days of such surrender (in accordance with
Section 13(d)) representing in the aggregate the outstanding Principal of this Note, and each such new Note will represent
such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.


 


S. Issuance of
New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i)
shall be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal
remaining outstanding (or in the case of a new Note being issued pursuant to Section 13(a) or Section 13(c), the Principal
designated by the Holder which, when added to the principal represented by the other new Notes issued in connection with such
issuance, does not exceed the Principal remaining outstanding under this Note immediately prior to such issuance of new
Notes), (iii) shall have an issuance date, as indicated on the face of such new Note, which is the same as the Issuance Date
of this Note, (iv) shall have the same rights and conditions as this Note, and (v) shall represent accrued and unpaid
Interest and Late Charges, if any, on the Principal and Interest of this Note, from the Issuance Date.


 


REMEDIES, CHARACTERIZATIONS,
OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and in addition to
all other remedies available under this Note and any of the other Transaction Documents at law or in equity (including a decree
of specific performance and/or other injunctive relief). No remedy contained herein shall be deemed a waiver of compliance with
the provisions giving rise to such remedy. Nothing herein shall limit the Holder’s right to pursue actual and consequential
damages for any failure by the Company or the Parent Guarantor to comply with the terms of this Note. The Company and the Parent
Guarantor covenant 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, redemption and the like (and the computation thereof)
shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation
of the Company or the Parent Guarantor (or the performance thereof). Each of the Company and the Parent Guarantor 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 and the Parent Guarantor therefore agree that, in the event of any such breach or threatened
breach, the Holder shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without
the necessity of showing economic loss and without any bond or other security being required.


 


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 the Parent Guarantor
or other proceedings affecting Company creditors’ rights or the Parent Guarantor creditors’ rights and involving a
claim under this Note, then the Company shall pay (and the Parent Guarantor shall cause the Company to pay) the costs incurred
by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or
other proceeding, including, but not limited to, attorneys’ fees and disbursements.


 


CONSTRUCTION; HEADINGS.
This Note shall be deemed to be jointly drafted by the Company and the Parent Guarantor and all the Buyers and shall not be construed
against any Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of,
or affect the interpretation of, this Note.


 


 


 


 






    	 	A-15	 



     

    

 


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.


 


DISPUTE RESOLUTION.
In the case of a dispute as to the arithmetic calculation of any Redemption Price, the Company shall pay the applicable Redemption
Price that is not disputed, and the Company shall submit the disputed arithmetic calculations within two (2) Business Days of the
delivery of the Redemption Notice or other event giving rise to such dispute, as the case may be, to the Holder. If the Holder
and the Company are unable to agree upon such determination or calculation within three (3) Business Days of such disputed arithmetic
calculation being submitted to the Holder, then the Company shall, within two (2) Business Days submit the disputed arithmetic
calculation of any Redemption Price to an independent, outside accountant, selected by the Holder and approved by the Company,
such approval not to be unreasonably withheld, conditioned or delayed. The Company, at its expense, shall cause the accountant
to perform the calculations and notify the Company and the Holder of the results no later than five (5) Business Days from the
time it receives the disputed calculations. Such accountant’s calculation shall be binding upon all parties absent demonstrable
error.


 


NOTICES; PAYMENTS.


 


T. 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 Securities Purchase Agreement. The Company or the Parent Guarantor (as applicable) 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 or the
Parent Guarantor (as applicable) shall give written notice to the Holder at least ten (10) Business Days prior to the date on
which the Company or the Parent Guarantor (as applicable) closes its books or takes a record (A) with respect to any dividend
or distribution upon the Common Stock, (B) with respect to any pro rata subscription offer to holders of Common Stock or (C)
for determining rights to vote with respect to any Fundamental Transaction or Liquidation Event.


 


U. Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, such payment shall be made in
lawful money of the United States of America via wire transfer of immediately available funds to an account designated by the
Holder; provided, that the Holder, upon written notice to the Company, may elect to receive a payment of cash in
lawful money of the United States of America by a check drawn on the account of the Company and sent via overnight courier
service to such Person at such address as previously provided to the Company in writing (which address, in the case of each
of the Buyers, shall initially be as set forth on the Schedule of Buyers attached to the Securities Purchase Agreement).
Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a Business Day, the same
shall instead be due on the next succeeding day which is a Business Day. Any amount 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 six percent (6.0%) per annum from the date such amount was due until the same is paid in full
(“Late Charge”).


 


CANCELLATION.
After all Principal, any accrued Interest and any other amounts at any time owed on this Note have been paid in full, this Note
shall automatically be deemed canceled and shall not be reissued, sold or transferred.


 


WAIVER OF NOTICE.
To the extent permitted by law, the Company and the Parent Guarantor hereby waive demand, notice, protest and all other demands
and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note.


 


 


 


 






    	 	A-16	 



     

    

 


GOVERNING LAW; JURISDICTION;
JURY TRIAL. This Note shall be governed by and construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of 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. Each of
the Company and the Parent Guarantor hereby irrevocably (i) 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, and
(ii) irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to the Company and the Parent Guarantor at the address set forth with respect to the Parent Guarantor
in Section 9(f) of the Securities Purchase Agreement and agrees that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner
permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other
legal action against the Company or the Parent Guarantor in any other jurisdiction to collect on the Company’s or the Parent
Guarantor’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce
a judgment or other court ruling in favor of the Holder. EACH OF THE COMPANY AND PARENT GUARANTOR 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.


 


Severability.
If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent
jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the
broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect
the validity of the remaining provisions of this Note so long as this Note as so modified continues to express, without material
change, the original intentions of the Company, the Parent Guarantor and the Holder as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations
or reciprocal obligations of the Company, the Parent Guarantor or the Holder or the practical realization of the benefits that
would otherwise be conferred upon the Company, the Parent Guarantor or the Holder. The Company, the Parent Guarantor and the Holder
will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s),
the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).


 


DISCLOSURE. Except
if an individual affiliated with the Holder serves on the Board, including pursuant to the Governance Agreement, upon receipt or
delivery by the Parent Guarantor of any notice in accordance with the terms of this Note, unless the Parent Guarantor has in good
faith determined that the matters relating to such notice do not constitute material, nonpublic information relating to the Parent
Guarantor or any of its Subsidiaries, the Parent Guarantor shall contemporaneously with any such receipt or delivery publicly disclose
such material, nonpublic information on a Current Report on Form 8-K or otherwise. In the event that the Parent Guarantor believes
that a notice contains material, nonpublic information relating to the Parent Guarantor or any of its Subsidiaries, the Parent
Guarantor so shall indicate to the Holder contemporaneously with delivery of such notice, and in the absence of any such indication,
the Holder shall be allowed to presume that all matters relating to such notice do not constitute material, nonpublic information
relating to the Parent Guarantor or any of its Subsidiaries.


 


USURY. This Note
is subject to the express condition that at no time shall the Company be obligated or required to pay interest hereunder at a rate
or in an amount which could subject the Holder to either civil or criminal liability as a result of being in excess of the maximum
interest rate or amount which the Company is permitted by applicable law to contract or agree to pay. If by the terms of this Note,
the Company is at any time required or obligated to pay interest hereunder at a rate or in an amount in excess of such maximum
rate or amount, the rate or amount of interest under this Note shall be deemed to be immediately reduced to such maximum rate or
amount and the interest payable shall be computed at such maximum rate or be in such maximum amount and all prior interest payments
in excess of such maximum rate or amount shall be applied and shall be deemed to have been payments in reduction of the principal
balance of this Note.


 


 


 


 






    	 	A-17	 



     

    

 


CANCELLATION IN CONNECTION
WITH SERIES B WARRANT EXERCISE. All or any portion of the Principal amount outstanding under this Note may, at the election
of the Holder, in its sole and absolute discretion, be surrendered to the Company from time to time for cancellation in payment
of the Other Exercise Price in accordance with the terms of the Series B Warrants. Any (A) accrued and unpaid Interest with respect
to the Principal amount cancelled pursuant to the immediately preceding sentence and (B) accrued and unpaid Late Charges, if any,
with respect to such Principal and Interest, shall be paid in cash by wire transfer of immediately available funds pursuant to
wire instructions provided by the Holder in writing to the Company on the applicable Share Delivery Date (as defined in the Series
B Warrants) and shall not be cancelled in payment of the Other Exercise Price upon exercise of the Series B Warrants.


 


CERTAIN DEFINITIONS.
For purposes of this Note, the following terms shall have the following meanings:


 


V.“Acquired
Indebtedness” means, with respect to any specified Person:


 


1. Indebtedness of
any other Person existing at the time such other Person (a) is merged with or into (or consolidated or otherwise combined
with the Parent Guarantor or any Subsidiary) or (b) became a Subsidiary of such specified Person, and


 


2. Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person,


in each case, including
Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary
or was otherwise acquired by such Person, or such asset was acquired by such Person, as applicable.


 


W.“Additional
Closing Date” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


X.“Additional
Company Notes” means: (i) all Senior Secured Notes, if any, issued by the Company pursuant to the Securities Purchase
Agreement on an Additional Closing Date that is not the Issuance Date, (ii) all Senior Secured Notes, if any, issued by the Company
in an Exchange (as defined in the Certificate of Designations).


 


Y.“Additional
Notes” means the Additional Company Notes and the Additional Parent Guarantor Notes.


 


Z.“Additional
Parent Guarantor Notes” means: (i) all Senior Secured Notes, if any, issued by the Parent Guarantor pursuant to the Securities
Purchase Agreement on an Additional Closing Date that is not the Issuance Date, (ii) all Senior Secured Notes, if any, issued by
the Parent Guarantor in an Exchange (as defined in the Certificate of Designations) and (iii) all Stockholders Notes.


 


AA.“Additional
Securities” means (i) the Additional Notes and (ii) all Series A Preferred Shares issued by the Parent Guarantor pursuant
to the Securities Purchase Agreement on the Initial Closing Date.


 


BB.“Affiliate”
shall have the meaning ascribed to such term in Rule 405 of the Securities Act.


 


CC.“Approved
Investment” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


DD.“Available
Amount Basket” means an amount equal to (i) $100,000,000 minus (ii) the amount of (A) Permitted Debt then outstanding
incurred pursuant to Section 10(a)(i)(1) or Section 10(a)(i)(22), (B) the cumulative amount of all liabilities of any Non-Guarantor
Subsidiaries, including any liabilities of such Non-Guarantor Subsidiaries appearing on the balance sheet of the Parent Guarantor
as of the latest date for which financial statements are available and any liabilities of any Non-Guarantor Subsidiaries to the
Parent Guarantor or any other Subsidiary of the Parent Guarantor and (C) the aggregate amount of cash, Cash Equivalents and Marketable
Securities held by Non-Guarantor Subsidiaries.


 


 


 


 






    	 	A-18	 



     

    

 


EE.“Board”
means the Board of Directors of the Parent Guarantor.


 


FF.“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.


 


GG.“Buyer”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


HH.“Capital
Stock” means:


 


1. in the case of a
corporation, corporate stock;


 


2. in the case of
an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;


 


3. in the case of a
partnership or limited liability company, partnership or membership interests (whether general or limited); and


 


4. any other
interest or participation that confers on a Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.


 


II.“Cash Equivalents”
means:


 


1. U.S. Dollars,
pounds sterling, euros, the national currency of any participating member state of the European Union or, in the case of any
foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;


 


2. securities
issued or directly and fully guaranteed or insured by the government of the United States or any country that is a member of
the European Union or any agency or instrumentality thereof in each case with maturities not exceeding two (2) years from the
date of acquisition;


 


3. certificates of
deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of acquisition,
bankers’ acceptances, in each case with maturities not exceeding one year, and overnight bank deposits, in each case
with any commercial bank having capital and surplus in excess of $500 million, or the foreign currency equivalent thereof,
and whose long-term debt is rated “A” or the equivalent thereof by Moody’s or S&P (or reasonably
equivalent ratings of another internationally recognized ratings agency);


 


4. repurchase
obligations for underlying securities of the types described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above;


 


5. commercial paper
issued by a corporation (other than an Affiliate of the Parent Guarantor) rated at least “A-1” or the equivalent
thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings agency)
and in each case maturing within one year after the date of acquisition;


 


6. readily
marketable direct obligations issued by any state of the United States of America or any political subdivision thereof having
one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings of
another internationally recognized ratings agency) in each case with maturities not exceeding two (2) years from the date of
acquisition;


 


 


 


 






    	 	A-19	 



     

    

 


7. Indebtedness
issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from Moody’s
in each case with maturities not exceeding two (2) years from the date of acquisition; and


 


8. investment funds
investing at least 95% of their assets in securities of the types described in clauses (i) through (vii) above.


 


JJ.“Certificate
of Designations” has the meaning ascribed to such term in the Securities Purchase Agreement.


 


KK.“Change
of Control” means any Fundamental Transaction, other than (i) an Approved Investment, (ii) any reorganization, recapitalization
or reclassification of Common Stock in which holders of the Parent Guarantor’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 Parent Guarantor; provided,
however, that a Change of Control will be deemed not to have occurred if ninety percent (90%) or more of the consideration
in the transaction or transactions which otherwise would constitute a Change of Control consists of shares of common stock, depositary
receipts or other certificates representing common equity interests traded or to be traded immediately following such transaction
on an Eligible Market.


 


LL.“Collateral”
shall have the meaning ascribed to such term in the Security Documents.


 


MM.“Collateral
Agent” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


NN.“Common
Stock” means (i) the Parent Guarantor’s shares of common stock, par value $0.001 per share and (ii) any
capital stock into which such Common Stock shall be changed or any capital stock resulting from a reorganization, recapitalization
or reclassification of such Common Stock.


 


OO.“Consolidated”
means, when used to modify a financial term, test, statement, or report of a Person, the application or preparation of such term,
test, statement or report (as applicable) based upon the consolidation, in accordance with GAAP, of the financial condition or
operating results of such Person and its Subsidiaries.


 


PP.“Credit
Facilities” means one or more debt facilities or other financing arrangements (including, without limitation, commercial
paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other long-term indebtedness,
including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in connection therewith,
and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof and any indentures or
credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans, notes, other credit facilities
or commitments thereunder, including any such replacement, refunding or refinancing facility or indenture that increases the amount
permitted to be borrowed thereunder or alters the maturity thereof or adds Subsidiaries as additional borrowers or guarantors thereunder
and whether by the same or any other agent, lender or group of lenders.


 


QQ.“Customary
Intercreditor Agreement” means (a) to the extent executed in connection with the incurrence or assumption of secured
Indebtedness, the Liens on the Collateral securing such Indebtedness which are intended to rank equal in priority to the Liens
on the Collateral securing the Securities and the Guarantees (but without regard to the control of remedies), a customary intercreditor
agreement in form and substance reasonably acceptable to the Required Holders and the Company, which agreement shall provide that
the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on the Collateral securing the
Securities and the Guarantees (but without regard to the control of remedies) and (b) to the extent executed in connection
with the incurrence or assumption of secured Indebtedness, the Liens on the Collateral securing such Indebtedness which are intended
to rank junior (or senior, as applicable) in priority to the Liens on the Collateral securing the Securities and the Guarantees,
a customary intercreditor agreement in form and substance reasonably acceptable to the Required Holders and the Company, which
agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior (or senior, as applicable)
in priority to the Lien on the Collateral securing the Securities and the Guarantees.


 


 


 


 






    	 	A-20	 



     

    

 


RR.“Designee”
means Starboard Value LP or any of its Affiliates.


 


SS.“Disqualified
Stock” means, with respect to any Person, any Capital Stock of such Person which, by its terms (or by the terms of any
security into which it is convertible or for which it is redeemable or exchangeable), or upon the happening of any event:


 


1. matures or is
mandatorily redeemable for cash or in exchange for Indebtedness, pursuant to a sinking fund obligation or otherwise (other
than as a result of a change of control or asset sale; provided that the relevant asset sale or change of control
provisions, taken as a whole, are no more favorable in any material respect to holders of such Capital Stock than the asset
sale and change of control provisions applicable to the Notes and the Additional Notes and any purchase requirement triggered
thereby may not become operative until (or contemporaneously with) compliance with the asset sale and change of control
provisions applicable to the Notes and the Additional Notes (including the purchase of any Notes and Additional Notes
tendered pursuant thereto)),


 


2. is convertible
or exchangeable for Indebtedness or Disqualified Stock at the option of the holder thereof, or


 


3. is redeemable at
the option of the holder thereof, in whole or in part,


 


in each case prior to
ninety one (91) days after the maturity date of the Notes and the Additional Notes; provided, however, that only
the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable
at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further,
however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Parent
Guarantor, the Company or any of their respective Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be repurchased by the Parent Guarantor or the Company in
order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability;
provided, further, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy
its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.


 


TT. “Eligible
Market” means the Principal Market, The New York Stock Exchange, The Nasdaq Capital Market, The Nasdaq Global Market,
the NYSE American, the London Stock Exchange, including the AIM, or the Euronext Stock Exchange.


 


UU.“Equity
Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock other than the Stockholders Notes).


 


VV.“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


WW.“Exchange
Agreement” means that certain Exchange Agreement dated as of June 30, 2020 by and among the Company, the Parent Guarantor
and the Designee.


 


XX.“Exchanged
Notes” means those certain senior secured notes issued by the Parent Guarantor pursuant to the Securities Purchase Agreement
on the Original Issuance Date that were exchanged for the Notes by the holders thereof on the Issuance Date.


 


YY.“Fair Market
Value” means, with respect to any asset or property, the price which could be negotiated in an arm’s-length, free
market transaction, for cash, between a willing seller and a willing and able buyer, neither of whom is under undue pressure or
compulsion to complete the transaction, as determined by the Company in its good faith discretion. “Fair Market Value”
may be (but need not be) conclusively established by means of resolutions of the Board setting out such Fair Market Value as determined
by the Board in good faith.


 


 


 


 






    	 	A-21	 



     

    

 


ZZ.“Finance
Lease Obligation” means, at the time any determination thereof is to be made, the amount of the liability in respect
of a finance lease that would at such time be required to be capitalized and reflected as a liability on a balance sheet (excluding
the footnotes thereto) in accordance with GAAP as in effect as of the applicable time of determination.


 


AAA.
“Fundamental Transaction” means (A) that the Parent Guarantor or 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 Parent Guarantor or 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
Parent Guarantor, the Company or any of their respective “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 Parent Guarantor or 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 more than either (x) 50% of the
outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common
Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such
purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject
Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange
offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the
outstanding shares of Common Stock, or (iv) consummate a stock purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities
whereby all such Subject Entities, individually or in the aggregate, acquire, either (x) more than 50% of the outstanding
shares of Common Stock, (y) more than 50% of the outstanding shares of Common Stock calculated as if any shares of Common
Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such
stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock
such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of
more than 50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B)
that the Parent Guarantor or the Company shall, directly or indirectly, including
through Subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity
individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment,
conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business
combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or
reclassification or otherwise in any manner whatsoever, of either (x) more than 50% of the aggregate ordinary voting power
represented by issued and outstanding shares of Common Stock, (y) more than 50% of the aggregate ordinary voting power
represented by issued and outstanding shares of Common Stock not held by all such Subject Entities as of the Subscription
Date calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage
of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity
securities of the Parent Guarantor or the Company, as applicable, sufficient to allow such Subject Entities to effect a
statutory short form merger or other transaction requiring other stockholders of the Parent Guarantor or the Company, as
applicable, to surrender their shares of Common Stock without approval of the stockholders of the Parent Guarantor or the
Company, as applicable, or (C) that the Parent Guarantor or the Company shall, directly or indirectly, including through
Subsidiaries, Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other
instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which
case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of
this definition to the extent necessary to correct this definition or any portion of this definition which may be defective
or inconsistent with the intended treatment of such instrument or transaction.


 


BBB.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant
segment of the accounting profession, in the United States, consistently applied during the periods involved. For the
avoidance of doubt the terms “consolidated” and “Consolidated” with respect to any Person shall mean
such Person consolidated with its Subsidiaries.


 


 


 


 






    	 	A-22	 



     

    

 


CCC.
“Governance Agreement” shall have the meaning ascribed to such term in the Securities Purchase
Agreement.


 


DDD.
“Group” means a “group” as that term is used in Section 13(d) of the Exchange Act and as
defined in Rule 13d-5 thereunder.


 


EEE.
“Guarantee” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


FFF.
“Guarantor” shall have the meaning ascribed to such term in the Securities Purchase Agreement. For the
avoidance of doubt, as of the Issuance Date the Parent Guarantor is the sole Guarantor.


 


GGG.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under (1) currency
exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and
currency exchange, interest rate or commodity collar agreements and (2) other agreements or arrangements designed to protect
such Person against fluctuations in currency exchange, interest rates or commodity prices.


 


HHH.
“Incur” (including, with correlative meaning, the term “Incurrence”) means issue,
assume, guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or
Equity Interests of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation,
acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary.


 


III.
“Indebtedness” means, with respect to any Person, without duplication: (1) the principal and premium (if
any) of any indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds,
notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication,
reimbursement agreements in respect thereof), with the amount of letters of credit and bankers’ acceptances being the
amount equal to the amount available to be drawn, (c) representing the deferred and unpaid purchase price of any property
(except trade payables and similar obligations) which purchase price is due more than one year after the later of the date of
placing the property in service or taking delivery and title thereto, or (d) in respect of Finance Lease Obligations, if and
to the extent that any of the foregoing indebtedness (other than letters of credit) would appear as a liability on a balance
sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP as in effect on the applicable date
of determination; (2) to the extent not otherwise included, any obligation of such Person to be liable for, or to pay, as
obligor, guarantor or otherwise, on the Indebtedness of another Person (other than by endorsement of negotiable instruments
for collection in the ordinary course of business); and (3) to the extent not otherwise included, the principal component of
Indebtedness of another Person secured by a Lien on any asset owned by such Person (whether or not such Indebtedness is
assumed by such Person); provided, however, that the amount of such Indebtedness will be the lesser of: (a) the
Fair Market Value of such asset at such date of determination, and (b) the amount of such Indebtedness of such other
Person.


 


JJJ.
“Initial Closing Date” shall have the meaning ascribed to such term in the Securities Purchase
Agreement.


 


KKK. “Intellectual
Property” has the meaning ascribed to such term in the Security Agreement.


 


LLL.
“Interest Rate” means 6.00% per annum, subject to adjustment as set forth in Section 2.


 


MMM.
“Investments” means, with respect to any Person, all investments by such Person in other Persons
(including Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts
receivable, trade credit and advances to customers and suppliers and commission, travel and similar advances to officers,
employees and consultants made in the ordinary course of business), purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities issued by any other Person.


 


 


 


 






    	 	A-23	 



     

    

 


NNN. “Investment Grade
Securities” means:


 


1. securities
issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof (other
than Cash Equivalents) and in each case with maturities not exceeding two (2) years from the date of acquisition,


 


2. securities that
have a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by S&P, or,
if Moody’s or S&P ceases to rate the securities for reasons outside of the Company’s control, an equivalent
rating by any other “nationally recognized statistical rating organization,” as such term is defined under
Section 3(a)(62) under the Exchange Act selected by the Company as a replacement agency for Moody’s or S&P, as the
case may be,


 


3. investments in
any fund that invests at least 95% of its assets in investments of the type described in clauses (i) and (ii) which fund may
also hold immaterial amounts of cash pending investment and/or distribution, and


 


4. corresponding
instruments in countries other than the United States customarily utilized for high quality investments and in each case with
maturities not exceeding two (2) years from the date of acquisition.


 


OOO.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit, arrangement, encumbrance, security
interest, lien (statutory or otherwise), or preference, priority or other security or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the foregoing); provided that in no event shall an
operating lease be deemed to constitute a Lien.


 


PPP.
“Liquidation Event” means the voluntary or involuntary liquidation, dissolution or winding up of the
Parent Guarantor or such Subsidiaries the assets of which constitute all or substantially all of the assets of the business
of the Parent Guarantor and its Subsidiaries taken as a whole, in a single transaction or series of transactions, or adoption
of any plan for the same.


 


QQQ.
“Make-Whole Amount” means the excess of:


 


a. the present
value at such Change of Control Redemption Date of (i) the applicable Redemption Amount of the Notes being redeemed, plus
(ii) all required Interest payments due on such Notes through the Maturity Date (excluding accrued but unpaid interest),
computed using a discount rate equal to the Treasury Rate as of such Change of Control Redemption Date plus 50 basis points;
over


 


b. the then
outstanding Principal amount of this Note.


 


RRR.
“Marketable Securities” means, any readily marketable equity securities (i) that are traded on an Eligible
Market or the Principal Market, (ii) that are eligible for sale without restriction or limitation pursuant to Rule 144 and
without the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities
Act, (iii) that are not subject to any trading restriction by virtue of possession by the Parent Guarantor or any Subsidiary
of any material, nonpublic information about the issuer of such equity securities, (iv) with respect to which the Parent
Guarantor or any Subsidiary is not filing a Schedule 13D pursuant to Section 13 of the Exchange Act and the rules and
regulations promulgated thereunder, (v) with respect to which the Parent Guarantor or any Subsidiary is not subject to
Section 16 of the Exchange Act and (vi) that are issued by an issuer having a total equity market capitalization of not less
than $75,000,000.


 


SSS.
“Moody’s” means Moody’s Investors Services, Inc. or any successor to the rating agency
business thereof.


 


 


 


 






    	 	A-24	 



     

    

 


TTT.
“Obligations” means any principal, interest, premium, if any, penalties, fees, indemnifications,
reimbursements, expenses, damages or other liabilities or amounts payable under the documentation governing or otherwise in
respect of any Indebtedness.


 


UUU.
“Obligors” means the Company, the Guarantors and the Pledged Subsidiaries.


 


VVV.
“Officer” means, with respect to any Person, the Chairman of the Board, Chief Executive Officer, Chief
Financial Officer, President, any Executive Vice President, Senior Vice President or Vice President (whether or not
designated by a number or a word or words added before or after the title “Vice President”), the Treasurer, the
Secretary or the Assistant Secretary of such Person, or any direct or indirect parent of such Person, as applicable, or other
Person performing such functions, regardless of title or designated as an “Officer” by the Board of Directors for
purposes of this Note.


 


WWW.
“Officer’s Certificate” means a certificate signed on behalf of the Company and the Parent Guarantor
by an Officer of the Company and an Officer of the Parent Guarantor and delivered to the Holder.


 


XXX.
“Original Issuance Date” means June 4, 2020.


 


YYY.
“Other Exercise Price” shall have the meaning ascribed to such term in the Series B Warrants.


 


ZZZ.
“Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person,
including such entity whose common capital stock or equivalent equity security is quoted or listed on an Eligible Market (or,
if so elected by the Required Holders, any other market, exchange or quotation system), or, if there is more than one such
Person or such entity, the Person or such entity designated by the Required Holders or in the absence of such designation,
such Person or entity with the largest public market capitalization as of the date of consummation of the Fundamental
Transaction.


 


AAAA.
“Parent Guarantee” means that certain guarantee agreement entered into by the Parent Guarantor as of the
Issuance Date.


 


BBBB. “Parent
Guarantor” means Acacia Research Corporation, a Delaware corporation.


 


CCCC.
“Permitted Investments” means:


 


1. any Investment
in the Parent Guarantor or the Company (including the Notes and the Additional Notes);


 


2. any Investment
in cash or Cash Equivalents, Investment Grade Securities or Marketable Securities, provided that such assets
constitute Collateral;


 


3. any Approved
Investment;


 


4. any Investment
(x) existing on the Subscription Date, (y) made pursuant to binding commitments (whether or not subject to conditions)
in effect on the Subscription Date or (z) that replaces, refinances, refunds, renews or extends any Investment described
under either of the immediately preceding clauses (x) or (y), provided that any such Investment is in an amount that
does not exceed the amount replaced, refinanced, refunded, renewed or extended unless required by the terms of the Investment
or otherwise permitted hereunder;


 


5. any Investment
acquired by the Parent Guarantor or any of its Subsidiaries (a) in exchange for any other Investment or accounts receivable
held by the Parent Guarantor or any such Subsidiary in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the Parent Guarantor or such other Investment or accounts receivable, (b) in
satisfaction of judgments against other Persons, or (c) as a result of a foreclosure by the Parent Guarantor or any of its
Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in
default;


 


 


 


 






    	 	A-25	 



     

    

 


6. Hedging
Obligations entered into (1) for the purpose of fixing, managing or hedging interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Note to be outstanding; (2) for the purpose of fixing, managing or
hedging currency exchange rate risk with respect to any currency exchanges; or (3) for the purpose of fixing, managing or
hedging commodity price risk with respect to any commodity purchases;


 


7. Investments the
payment for which consists of Equity Interests of the Parent Guarantor (other than Disqualified Stock);


 


8. guarantees
issued in accordance with Section 10(a);


 


9. any Investment
by (A) the Company in the Parent Guarantor, (B) Guarantors in other Guarantors or (C) Pledged Subsidiaries (other than the
Company and any Guarantor) in other Pledged Subsidiaries; provided that such Pledged Subsidiary into which such
Investment is made has no material third-party liabilities and is not engaging in any activities or aware of any event that
would reasonably be expected to lead to a material third-party liability;


 


10. Investments
consisting of purchases and acquisitions of (i) inventory, supplies, materials and equipment by a Guarantor, (ii)
Intellectual Property assets or (iii) contract rights, royalty rights, revenue streams, licenses or leases of Intellectual
Property, in each case in the ordinary course of business and, with respect to clauses (ii) and (iii), in an aggregate amount
since the Original Issuance Date not to exceed $50,000,000;


 


11. any Investment
in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified
Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements governing
such Qualified Receivables Financing or any related Indebtedness; provided, however, that any Investment in a
Receivables Subsidiary is in the form of cash, a Purchase Money Note, contribution of additional receivables or an equity
interest;


 


12. Investments of
a Guarantor acquired after the Subscription Date or of an entity merged into or consolidated with a Guarantor in a
transaction that is not prohibited by Section 5(a) after the Subscription Date to the extent that such Investments were not
made in contemplation of such acquisition, merger or consolidation and were in existence on the date of such acquisition,
merger or consolidation;


 


13. Investments in
receivables owing to the Parent Guarantor or any Subsidiary created or acquired in the ordinary course of business;


 


14. advances in the
form of a prepayment of expense to vendors, suppliers and trade creditors consistent with their past practices, so long as
such expenses were incurred in the ordinary course of business;


 


15. Investment in
or repurchases of this Note, the Other Notes, the Additional Notes, the Series A Preferred Shares or the Warrants;


 


16. Investments
resulting from the acquisition of a Person, otherwise permitted by this Note, which Investments at the time of such
acquisition were held by the acquired Person and were not acquired in contemplation of the acquisition of such Person;


 


17. Investments
consisting of earnest money deposits required in connection with a purchase agreement, or letter of intent, or other
acquisitions to the extent not otherwise prohibited by this Note; and


 


 


 


 






    	 	A-26	 



     

    

 


18. contributions
to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in the case
of a bankruptcy of the Parent Guarantor.


 


DDDD. “Permitted
Liens” means, with respect to any Person:


 


1. Liens existing
on the Subscription Date;


 


2. Liens affecting
property of a corporation or other entity existing at the time it becomes a Subsidiary or at the time it is merged into or
consolidated with the Parent Guarantor or a Subsidiary (provided that such Liens are not incurred in connection with,
or in contemplation of, such entity becoming a Subsidiary or such merger or consolidation and do not extend to or cover
property of the Parent Guarantor or any Subsidiary other than property of the entity so acquired or which becomes a
Subsidiary);


 


3. Liens (including
purchase money Liens) existing at the time of acquisition thereof on property acquired after the Subscription Date or to
secure Indebtedness Incurred prior to or, at the time of the acquisition thereof for the purpose of financing all or part of
the purchase price of property acquired after the Subscription Date (provided that such Liens do not extend to or
cover any property of the Parent Guarantor or any of its Subsidiaries other than the property so acquired);


 


4. Liens on any
property acquired, developed, constructed or otherwise improved by the Parent Guarantor or any Subsidiary of the Parent
Guarantor (including Liens on the Equity Interests of any Subsidiary of the Parent Guarantor and substantially all assets of
such Subsidiary, in each case to the extent such property constitutes substantially all of the business of such Subsidiary)
to secure or provide for the payment of any part of the purchase price of the property or the cost of the development,
construction or improvement thereof (including architectural, engineering, financing, consultant, advisor and legal fees and
preopening costs), or any Indebtedness incurred to provide funds for such purposes, or any Lien on any such property existing
at the time of acquisition thereof;


 


5. Liens which
secure Indebtedness or other obligations of a Guarantor owing to a Guarantor permitted to be Incurred in accordance with
Section 10(a), which may be senior, pari passu or junior in right of payment and priority to the security interests
established by the Security Documents in accordance with a Customary Intercreditor Agreement;


 


6. Liens to
government entities, including pollution control or industrial revenue bond financing;


 


7. Liens required by any contract or
statute in order to permit the Parent Guarantor or a Subsidiary of the Parent Guarantor to perform any contract or
subcontract made by it with or at the request of a governmental entity;


 


8.
mechanic’s, materialman’s, carrier’s or other like Liens, arising in the ordinary course of business;


 


9. Liens for taxes
or assessments and similar charges;


 


10. zoning
restrictions, easements, licenses, covenants, reservations, restrictions on the use of real property and certain other minor
irregularities of title;


 


11. Liens required
by an escrow agreement in connection with the incurrence of Indebtedness otherwise permitted under this Agreement;


 


 


 






    	 	A-27	 



     

    

 


12. pledges or
deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which
such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S.
government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested
taxes or import duties or for the payment of rent, in each case Incurred in the ordinary course of business;


 


13. Liens on
specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of
bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage
of such inventory or other goods;


 


14. leases and
subleases of real property which do not materially interfere with the ordinary conduct of the business of the Parent
Guarantor or any of its Subsidiaries;


 


15. Liens securing
cash management services (and other “bank products”) in the ordinary course of business;


 


16. Liens on
equipment of the Parent Guarantor or any Subsidiary of the Parent Guarantor granted in the ordinary course of business to the
Parent Guarantor’s or such Subsidiary’s client or supplier at which such equipment is located;


 


17. Liens securing
Indebtedness incurred pursuant to clause (1) of Section 10(a)(i) plus in the case of any such Indebtedness that is amended,
extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed which is secured by
a Lien permitted under this clause (xvii) or a portion thereof, the aggregate amount of fees, underwriting discounts, accrued
and unpaid interest, premiums and other costs and expenses incurred in connection with such amendment, extension, renewal,
restatement, refunding, replacement, refinancing, supplement, modification or change;


 


18. Liens securing
the Securities and the Guarantees;


 


19. Liens on
accounts receivable and related assets of the type specified in the definition of “Receivables Financing”
Incurred in connection with a Qualified Receivables Financing;


 


20.(a) judgment and attachment
Liens and Liens arising out of decrees, orders and awards, in each case, to the extent not giving rise to an Event of Default and
(b) notices of lis pendens and associated rights related to litigation being contested in good faith by appropriate proceedings
that have the effect of preventing the forfeiture or sale of the property or assets subject to such notices and rights and for
which adequate reserves have been made to the extent required by GAAP;


 


21. Liens (i) on
cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to Permitted
Investments to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to sell any
property in an asset sale permitted under this Note;


 


22. Liens securing
Indebtedness permitted under clause (22) of the definition of Permitted Debt; and


 


23. any extension,
renewal, replacement, restructuring, refinancing or other modification of any Indebtedness secured by a Lien permitted by any
of the foregoing clauses (i) through (xxii).


 


 


 


 






    	 	A-28	 



     

    

 


EEEE.
“Person” means an individual, a limited liability company, a partnership (limited or general), a joint
venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or
agency thereof.


 


FFFF.
“Pledged Subsidiaries” means those certain Subsidiaries whose Equity Interests (as defined in the Security
Documents) are Pledged Shares (as defined in the Security Documents).


 


GGGG.
“Preferred Stock” means any Equity Interest with preferential right of payment of dividends or upon
liquidation, dissolution or winding up.


 


HHHH.
“Principal Market” means The Nasdaq Global Select Market.


 


IIII.
“Purchase Money Note” means a promissory note of a Receivables Subsidiary evidencing a line of credit,
which may be irrevocable, from the Parent Guarantor or any Subsidiary of the Parent Guarantor to a Receivables Subsidiary in
connection with a Qualified Receivables Financing, which note is intended to finance that portion of the purchase price that
is not paid by cash or a contribution of equity.


 


JJJJ.
“Qualified Receivables Financing” means any Receivables Financing of a Receivables Subsidiary that meets
the following conditions:


 


1. the Board shall
have determined in good faith that such Qualified Receivables Financing (including financing terms, covenants, termination
events and other provisions) is in the aggregate economically fair and reasonable to the Parent Guarantor and the Receivables
Subsidiary,


 


2. all sales of
accounts receivable and related assets to and by the Receivables Subsidiary are made at Fair Market Value, and


 


3. the financing
terms, covenants, termination events and other provisions thereof shall be market terms (as determined in good faith by the
Parent Guarantor) and may include Standard Securitization Undertakings.


 


KKKK.
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect to
any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Subsidiary in
connection with, any Receivables Financing.


 


LLLL.
“Receivables Financing” means any transaction or series of transactions pursuant to which the Parent
Guarantor or any of its Subsidiaries may sell, convey or otherwise transfer to a Person, or may grant a security interest in,
any accounts receivable (whether now existing or arising in the future) of the Parent Guarantor or any of its Subsidiaries,
and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts
and all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and
other assets which are customarily transferred or in respect of which security interests are customarily granted in
connection with asset securitization transactions involving accounts receivable and any Hedging Obligations pursuant to a
Swap Contract entered into by the Parent Guarantor or any such Subsidiary in connection with such accounts receivable.


 


MMMM.
“Receivables Repurchase Obligation” means any obligation of a seller of receivables in a Qualified
Receivables Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or
otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute,
off-set or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event
relating to the seller.


 


 


 


 






    	 	A-29	 



     

    

 


NNNN.
“Receivables Subsidiary” means a Wholly Owned Subsidiary of the Parent Guarantor (or other Person formed
for the purposes of engaging in a Qualified Receivables Financing with the Parent Guarantor or any of its Subsidiaries in
which the Parent Guarantor or such Subsidiary makes an Investment and to which the Parent Guarantor or such Subsidiary
transfers accounts receivable and related assets) which engages in no activities other than in connection with the
Receivables Financing, all proceeds thereof and all rights (contractual or other), collateral and other assets relating
thereto, and any business or activities incidental or related to such business and which is designated by the Board (as
provided below) as a Receivables Subsidiary and:


 


1. no portion of
the Indebtedness or any other obligations (contingent or otherwise) of which (x) is guaranteed by the Parent Guarantor or any
of its Subsidiaries (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (y) is recourse to or obligates the Parent Guarantor or any of its
Subsidiaries (other than such Receivables Subsidiary) in any way other than pursuant to Standard Securitization Undertakings,
or (z) subjects any property or asset of the Parent Guarantor or any of its Subsidiaries, directly or indirectly,
contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings,


 


2. with which
neither the Parent Guarantor nor any of its Subsidiaries has any material contract, agreement, arrangement or understanding
other than on terms which the Parent Guarantor reasonably believes to be no less favorable to the Parent Guarantor or such
Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Parent Guarantor or such
Subsidiary, and


 


3. to which neither
the Parent Guarantor nor any of its Subsidiaries has any obligation to maintain or preserve such entity’s financial
condition or cause such entity to achieve certain levels of operating results.


 


4. Any such
designation by the Board or such other Person shall be evidenced to the Holder by delivery to the Holder of a certified copy
of the resolution of the Board or such other Person giving effect to such designation and an Officer’s Certificate
certifying that such designation complied with the foregoing conditions.


 


OOOO.
“Redemption Amount” means the sum of (A) the portion of the Principal to be redeemed or otherwise with
respect to which this determination is being made, (B) accrued and unpaid Interest with respect to such Principal and (C)
accrued and unpaid Late Charges, if any, with respect to such Principal and Interest.


 


PPPP.
“Redemption Dates” means, collectively, each Event of Default Redemption Date and each Change of Control
Redemption Date, each of the foregoing, individually, a “Redemption Date”.


 


QQQQ.
“Redemption Notices” means, collectively, each Event of Default Redemption Notice and each Change of
Control Redemption Notice, each of the foregoing, individually, a “Redemption Notice”.


 


RRRR.
“Redemption Prices” means, collectively, each Event of Default Redemption Price and each Change of Control
Redemption Price, each of the foregoing, individually, a “Redemption Price”.


 


SSSS.
“Registrable Securities” shall have the meaning ascribed to such term in the Registration Rights
Agreement.


 


TTTT.
“Registration Rights Agreement” means that certain registration rights agreement dated as of the
Subscription Date by and among the Parent Guarantor and the Buyers, as may be amended, amended and restated, supplemented or
otherwise modified from time to time.


 


 


 


 






    	 	A-30	 



     

    

 


UUUU.
“Registration Statement” shall have the meaning ascribed to such term in the Registration Rights
Agreement.


 


VVVV.
“Related Fund” means, with respect to any Person, a fund or account managed by such Person or an Affiliate
of such Person.


 


WWWW.
“Required Holders” means the holders of Notes and Additional Company Notes representing at least a
majority of the aggregate principal amount of the Notes and Additional Company Notes then outstanding and shall include the
Designee so long as the Designee and/or any of its Affiliates holds any Notes and/or Additional Company Notes.


 


XXXX.
“Restricted Investment” means an Investment other than a Permitted Investment.


 


YYYY.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and any successor thereto.


 


ZZZZ.
“SEC” means the United States Securities and Exchange Commission.


 


AAAAA.
“Securities Act” means the Securities Act of 1933, as amended.


 


BBBBB.
“Securities Purchase Agreement” means that certain securities purchase agreement, dated as of the
Subscription Date, by and among the Parent Guarantor and the Buyers of the Notes pursuant to which the Parent Guarantor or
the Company, as applicable, issued the Notes, the Additional Securities and the Warrants, as may be amended, amended and
restated, supplemented or otherwise modified from time to time.


 


CCCCC.
“Security Documents” shall have the meaning ascribed to such term in the Securities Purchase Agreement,
and shall include the New Pledge Agreement, the New Security Agreement and the Parent Guarantee, each as defined in the
Exchange Agreement.


 


DDDDD.
“Series A Preferred Shares” shall have the meaning ascribed to such term in the Securities Purchase
Agreement.


 


EEEEE.
“Series A Warrants” has the meaning ascribed to such term in the Securities Purchase Agreement, and shall
include all warrants issued in exchange therefor or replacement thereof.


 


FFFFF.
“Series B Warrants” has the meaning ascribed to such term in the Securities Purchase Agreement, and shall
include all warrants issued in exchange therefor or replacement thereof.


 


GGGGG.
“SPA Notes” means all Senior Secured Notes issued by the Parent Guarantor or any Subsidiary pursuant to
the Securities Purchase Agreement on an Additional Closing Date.


 


HHHHH.
“Standard Securitization Undertakings” means representations, warranties, covenants, indemnities and
guarantees of performance entered into by the Parent Guarantor and its Subsidiaries which the Parent Guarantor has determined
in good faith to be customary in a Receivables Financing including, without limitation, those relating to the servicing of
the assets of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation shall be deemed to be
a Standard Securitization Undertaking.


 


IIIII.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed
date on which the final payment of principal of such security is due and payable.


 


JJJJJ.
“Stated Value” shall have the meaning ascribed to such term in the Certificate of Designations.


 


 


 


 






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KKKKK.
“Stockholders Notes” shall have the meaning ascribed to such term in the Securities Purchase
Agreement.


 


LLLLL.
“Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person,
Persons or Group.


 


MMMMM.
“Subordinated Indebtedness” means (a) with respect to the Parent Guarantor, any Indebtedness of the Parent
Guarantor which is by its terms subordinated in right of payment to the Notes, the Additional Notes and the Parent Guarantee,
and (b) with respect to any Guarantor other than the Parent Guarantor, any Indebtedness of such Guarantor which is by its
terms subordinated in right of payment to its Guarantee.


 


NNNNN.
“Subscription Date” means November 18, 2019.


 


OOOOO.
“Subsidiary” shall have the meaning ascribed to such term in the Securities Purchase Agreement. Unless
otherwise indicated herein, all references to Subsidiaries shall mean Subsidiaries of the Parent Guarantor.


 


PPPPP.
“Successor Entity” means one or more Person or Persons (or, if so elected by the Required Holders, the
Parent Guarantor or Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or one or more Person
or Persons (or, if so elected by the Required Holders, the Parent Guarantor or the Parent Entity) with which such Fundamental
Transaction shall have been entered into.


 


QQQQQ.
“Supplemental Agreement” means that certain Supplemental Agreement dated as of June 4, 2020 by and between
the Parent Guarantor and the Designee.


 


RRRRR.
“Swap Contracts” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity
index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or
any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the
foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International
Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related
schedules, a “Master Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


SSSSS. “Total
Assets” means at any date, the total assets of the Parent Guarantor and its Subsidiaries at such date, determined on
a consolidated basis in accordance with GAAP, excluding any assets that do not constitute Collateral.


 


TTTTT.
“Trading Day” means any day on which the Common Stock is traded on the Principal Market, or, if the
Principal Market is not the principal trading market for the Common Stock on such day, then on the principal securities
exchange or securities market on which the Common Stock is then traded; 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).


 


UUUUU.
“Transaction Documents” shall have the meaning ascribed to such term in the Securities Purchase
Agreement.


 


 


 


 






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VVVVV.
“Transfer Agent” means Computershare Trust Company, N.A. or such other agent or agents of the Parent
Guarantor as may be designated by the Board as the transfer agent for the Common Stock.


 


WWWWW.
“Treasury Rate” means the yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15
(519) which has become publicly available at least two (2) Business Days prior to the date fixed for redemption (or, if such
Statistical Release is no longer published, any publicly available source for similar market data)) most nearly equal to the
then remaining term of the Notes to the Maturity Date; provided, however, that if the then remaining term of the
Notes to the Maturity Date is not equal to the constant maturity of a United States Treasury security for which a weekly
average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest
one-twelfth of a year) from the weekly average yields of United States Treasury securities for which such yields are given,
except that, if the then remaining term of the Notes to the Maturity Date is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year shall be used.


 


XXXXX.
“Warrants” has the meaning ascribed to such term in the Securities Purchase Agreement, and shall include
all warrants issued in exchange therefor or replacement thereof.


 


YYYYY.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness or Disqualified Stock, as the
case may be, at any date, the quotient obtained by dividing (1) the sum of the products of the number of years from the date
of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar
payment with respect to such Disqualified Stock multiplied by the amount of such payment, by (2) the sum of all such
payments.


 


ZZZZZ.
“Wholly Owned Subsidiary” means, with respect to any Person, a Subsidiary of such Person 100% of the
outstanding Capital Stock or other ownership interests of which (other than directors’ qualifying shares or shares or
interests required to be held by foreign nationals or other third parties to the extent required by applicable law) shall at
the time be owned by such Person or by one or more Wholly Owned Subsidiaries of such Person and one or more Wholly Owned
Subsidiaries of such Person.


 


[Signature Page Follows]


 


 


 


 


 


 






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IN WITNESS WHEREOF, the
Company and the Parent Guarantor have caused this Note to be duly executed as of the Issuance Date set out above.


 


	 	Merton Acquisition HoldCo LLC
	 	 
	 	 
	 	By:_________________________________
	 	Name:Richard Rosenstein
	 	Title: Chief Financial Officer


 


 


	 	Acacia Research Corporation
	 	 
	 	 
	 	By:_________________________________
	 	Name: Richard Rosenstein
	 	Title:Chief Financial Officer


 


 


 


 


 


 


 






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