Exhibit 10.1


 


EQUITY
PURCHASE AGREEMENT


 


This
equity purchase agreement is entered into as of February 8, 2017 (this “Agreement”), by and between Nightfood
Holdings, Inc., a Nevada corporation (the “Company”), and Black Forest Capital, LLC, a Wyoming limited liability
company (the “Investor”).


 


WHEREAS,
the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall issue and sell to the
Investor, from time to time as provided herein, and the Investor shall purchase up to Five Million Dollars ($5,000,000) of the
Company’s Common Stock (as defined below);


 


NOW,
THEREFORE, the parties hereto agree as follows:


 


ARTICLE
I


 


CERTAIN
DEFINITIONS


 


Section
1.1 DEFINED TERMS. As used in this Agreement, the following terms shall have the following meanings specified or indicated
(such meanings to be equally applicable to both the singular and plural forms of the terms defined):


 


“Agreement”
shall have the meaning specified in the preamble hereof.


 


“Average
Daily Trading Value” shall mean the average trading volume of the Company’s Common Stock in the twenty (20) Trading
Days immediately preceding the respective Put Date multiplied by the lowest VWAP of the Company’s Common Stock in the twenty
(20) Trading Days immediately preceding the respective Put Date.


 


“Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.


 


“Claim
Notice” shall have the meaning specified in Section 9.3(a).


 


“Clearing
Costs” shall mean all of the Investor’s broker and Transfer Agent fees, excluding commissions.


 


“Clearing
Date” shall be the date on which the Investor receives the Put Shares as DWAC Shares in its brokerage account.


 


“Closing”
shall mean one of the closings of a purchase and sale of shares of Common Stock pursuant to Section 2.3.


 


“Closing
Certificate” shall mean the closing certificate of the Company in the form of Exhibit B hereto.


 


“Closing
Date” shall mean the date of any Closing hereunder.


 






     


     


    

 


“Commitment
Note” shall mean the 8% convertible promissory note in the principal amount of $32,500.00, attached as Exhibit C
hereto, issued by the Company to the Investor on February 8, 2017.


 


“Commitment
Period” shall mean the period commencing on the Execution Date, and ending on the earlier of (i) the date on which the
Investor shall have purchased Put Shares pursuant to this Agreement equal to the Maximum Commitment Amount, (ii) the date in which
the Registration Statement is no longer effective, or (iii) 24 months after the initial effectiveness of the Registration Statement.


 


“Common
Stock” shall mean the Company’s common stock, $0.001 par value per share, and any shares of any other class of common
stock whether now or hereafter authorized, having the right to participate in the distribution of dividends (as and when declared)
and assets (upon liquidation of the Company).


 


“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.


 


“Company”
shall have the meaning specified in the preamble to this Agreement.


 


“Custodian” means
any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


“Damages” shall
mean any loss, claim, damage, liability, cost and expense (including, without limitation, reasonable attorneys’ fees
and disbursements and costs and expenses of expert witnesses and investigation).


 


“Dispute
Period” shall have the meaning specified in Section 9.3(a).


 


“DTC”
shall mean The Depository Trust Company, or any successor performing substantially the same function for the Company.


 


“DTC/FAST
Program” shall mean the DTC’s Fast Automated Securities Transfer Program.


 


“DWAC”
shall mean Deposit Withdrawal at Custodian as defined by the DTC.


 


“DWAC
Eligible” shall mean that (a) the Common Stock is eligible at DTC for full services pursuant to DTC’s
Operational Arrangements, including, without limitation, transfer through DTC’s DWAC system, (b) the Company has been
approved (without revocation) by the DTC’s underwriting department, (c) the Transfer Agent is approved as an agent in
the DTC/FAST Program, (d) the Underlying Shares or Put Shares, as applicable, are otherwise eligible for delivery via DWAC,
and (e) the Transfer Agent does not have a policy prohibiting or limiting delivery of the Underlying Shares or Put Shares, as
applicable, via DWAC.


 






    	 	2	 



     


    

 


“DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and
without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified
DWAC account with DTC under the DTC/FAST Program, or any similar program hereafter adopted by DTC performing substantially the
same function.


 


“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


“Exchange
Cap” shall have the meaning set forth in Section 7.1(c).


 


“Execution Date” shall mean the date of this
Agreement.


 


“FINRA” shall
mean the Financial Industry Regulatory Authority, Inc.


 


“Investment
Amount” shall mean the Put Shares referenced in the Put Notice multiplied by the Purchase Price minus the Clearing Costs.


 


“Indemnified
Party” shall have the meaning specified in Section 9.2.


 


“Indemnifying Party” shall have the meaning
specified in Section 9.2.


 


“Indemnity Notice” shall have the meaning specified in Section 9.3(e).


 


“Investor”
shall have the meaning specified in the preamble to this Agreement.


 


“Lien”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


“Market
Price” shall mean the lowest VWAP on the Principal Market for any Trading Day during the twenty (20) Trading Days immediately
preceding the respective Put Date, as reported by Bloomberg Finance L.P or other reputable source.


 


“Material
Adverse Effect” shall mean any effect on the business, operations, properties, or financial condition of the Company
and the Subsidiaries that is material and adverse to the Company and the Subsidiaries and/or any condition, circumstance, or situation
that would prohibit or otherwise materially interfere with the ability of the Company to enter into and perform its obligations
under any Transaction Document.


 


“Maximum
Commitment Amount” shall mean Five Million Dollars ($5,000,000).


 


“Person”
shall mean an individual, a corporation, a partnership, an association, a trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.


 






    	 	3	 



     


    

 


“Principal
Market” shall mean any of the national exchanges (i.e. NYSE, NYSE AMEX, Nasdaq), or principal quotation systems (i.e.
OTCQX, OTCQB, the OTC Bulletin Board), or other principal exchange or recognized quotation system which is at the time the principal
trading platform or market for the Common Stock.


 


“Purchase
Price” shall mean 85% of the Market Price on such date on which the Purchase Price is calculated in accordance with the
terms and conditions of this Agreement.


 


“Put”
shall mean the right of the Company to require the Investor to purchase shares of Common Stock, subject to the terms and conditions
of this Agreement.


 


“Put
Date” shall mean any Trading Day during the Commitment Period that a Put Notice is deemed delivered pursuant to Section
2.2(b).


 


“Put
Notice” shall mean a written notice, substantially in the form of Exhibit A hereto, to Investor setting forth
the Put Shares which the Company intends to require Investor to purchase pursuant to the terms of this Agreement.


 


“Put
Shares” shall mean all shares of Common Stock issued, or that the Company shall be entitled to issue, per any applicable
Put Notice in accordance with the terms and conditions of this Agreement.


 


“Registration
Statement” shall have the meaning specified in Section 6.4. “Regulation D” shall mean Regulation D promulgated
under the Securities Act.


 


“Required
Note Minimum” shall mean, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially
issuable in the futureupon conversion in full of the Commitment Note (including Underlying Shares issuable as payment of interest
on the Commitment Note), ignoring any conversion limits set forth therein, and assuming that the conversion price is at all times
on and after the date of determination 100% of the then conversion price on the Trading Day immediately prior to the date of determination.


 


“Rule
144” shall mean Rule 144 under the Securities Act or any similar provision then in force under the Securities Act.


 


“SEC”
shall mean the United States Securities and Exchange Commission.


 


“SEC Documents” shall have the meaning
specified in Section 4.5.


 


“Securities”
means, collectively, the Put Shares, the Commitment Note and the Underlying Shares.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended.


 






    	 	4	 



     


    

 


“Short
Sales” shall mean all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.


 


“Subsidiary”
means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of
the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation
S-K promulgated under the Securities Act.


 


“Third
Party Claim” shall have the meaning specified in Section 9.3(a).


 


“Trading
Day” shall mean a day on which the Principal Market shall be open for


 


business.


 


“Transaction
Documents” shall mean this Agreement and the Commitment Note and all schedules and exhibits hereto and thereto.


 


“Transfer
Agent” shall mean ClearTrust, LLC, the current transfer agent of the Company, with a mailing address of 16540 Pointe
Village Dr., Suite 210, Lutz, FL 33558, and any successor transfer agent of the Company.


 


“Transfer
Agent Instruction Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent
to issue the Put Shares and the Underlying Shares pursuant to the Transaction Documents, in the form of Exhibit D attached
hereto.


 


“Underlying
Shares” means the shares of Common Stock issued and issuable upon conversion of the Commitment Note and issued and issuable
in lieu of the cash payment of interest or principal on the Commitment Note in accordance with the terms of the Commitment Note.


 


“Valuation
Period” shall mean the period of five (5) Trading Days immediately following the Clearing Date associated with the applicable
Put Notice.


 


“VWAP” means,
for or as of any date, the dollar volume-weighted average price for such security on the Principal Market during the period
beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through
its “HP” function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted
average price of such security in the over-the-counter market on the electronic bulletin board for such security during the
period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg or other
reliable reporting service, or, if no dollar volume-weighted average price is reported for such security by Bloomberg or
other reliable reporting service for such hours, the average of the highest closing bid price and the lowest closing ask
price of any of the market makers for such security as reported OTC Markets or other applicable Principal Market. If the VWAP
cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date
shall be the fair market value as mutually determined by the Company and the Investor. All such determinations shall be
appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction
during such period.


 






    	 	5	 



     


    

 


ARTICLE
II


PURCHASE
AND SALE OF COMMON STOCK


 


Section
2.1 PUTS. Upon the terms and conditions set forth herein (including, without limitation, the provisions of Article
VII), the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of a
Put Notice from time to time, to purchase Put Shares (i) in a minimum amount not less than $25,000 and (ii) in a maximum
amount up to the lesser of (a) $250,000 or (b) 200% of the Average Daily Trading Value; provided that such minimum
amount of Put Shares may be decreased and such maximum amount of Put Shares may be increased subject to the Investor’s
approval.


 


Section
2.2 MECHANICS.


 


(a)              PUT NOTICE. At any time and from time to time during the Commitment Period, except during the Valuation Period with respect
to any Put, the Company may deliver a Put Notice to Investor, subject to satisfaction of the conditions set forth in this Agreement,
including but not limited to Section 7.2. The Company shall deliver, or cause to be delivered, the Put Shares as DWAC Shares to
the Investor within two (2) Trading Days following the Put Date.


 


(b)              DATE OF DELIVERY OF PUT NOTICE. A Put Notice shall be deemed delivered on (i) the Trading Day it is received by email by
the Investor if such notice is received on or prior to 9:00 a.m. New York time or (ii) the immediately succeeding Trading Day
if it is received by email after 9:00 a.m. New York time on a Trading Day or at any time on a day which is not a Trading Day.
The Valuation Period will commence one (1) Trading Day following the Clearing Date. The Company may not deliver another Put Notice
to the Investor during the Valuation Period with respect to any Put.


 


Section
2.3 CLOSINGS. If the value of the Put Shares delivered to the Investor causes
the Company to exceed the Maximum Commitment Amount, then the Investor shall return to the Company the surplus amount of Put
Shares associated with such Put and the Purchase Price with respect to such Put shall be reduced by any Clearing Costs
related to the return of such Put Shares. The Closing of a Put shall occur within two (2) Trading Days following the
respective Clearing Date, whereby the Investor shall deliver the Investment Amount by wire transfer of immediately available
funds to an account designated by the Company. In addition, on or prior to such Closing, each of the Company and the Investor
shall deliver to each other all documents, instruments and writings required to be delivered or reasonably requested by
either of them pursuant to this Agreement in order to implement and effect the transactions contemplated herein. The Company
shall use at least 20% of each Investment Amount received to pay off any outstanding promissory notes that are convertible
into common stock of the Company.


 






    	 	6	 



     


    

 


Section
2.4 TRUE-UP. If the lowest VWAP of the Common Stock during the Valuation Period (the “True-Up Price”) for the
respective Put Shares is less than the Market Price for the respective Put Shares, then the Company shall, within two (2) Trading
Days of Investor’s provision of written notice in the form attached hereto as Exhibit E, issue and deliver to the Investor
an additional number of validly issued, fully paid, non-assessable, and free trading shares of Common Stock under the Registration
Statement equal to (X) the quotient of the Purchase Price for the respective Put Shares divided by the True-Up Price, less (Y)
the respective Put Shares. Any additional shares of Common Stock issuable hereunder are referred to herein as “Additional
Shares.” Accordingly, the Additional
Shares, if required to be issued pursuant to this Agreement, shall be issued in accordance with the Beneficial Ownership Limitation,
and in successive tranches (each an “Additional Tranche”) if the issuance of one tranche would cause the Investor’s
beneficial ownership to exceed the Beneficial Ownership Limitation (based upon the then outstanding shares of the Common Stock)
at that time. The Company shall issue each respective Additional Tranche of the Additional Shares, if required under this Agreement,
within two (2) Trading Days of the request by Investor, subject to the Beneficial Ownership Limitation. If the Company fails to
issue the Additional Shares or any Additional Tranche within the timeframe specified in this Agreement, then the amount of Additional
Shares in which Investor is entitled shall automatically be multiplied by two. 


ARTICLE
III


REPRESENTATIONS
AND WARRANTIES OF INVESTOR


 


The
Investor represents and warrants to the Company that:


 


Section
3.1 INTENT. The Investor is entering into this Agreement for its own account and the Investor has no present
arrangement (whether or not legally binding) at any time to sell the Securities to or through any Person in violation of the
Securities Act or any applicable state securities laws; provided, however, that the Investor reserves the right to
dispose of the Securities at any time in accordance with federal and state securities laws applicable to such
disposition.


 


Section
3.2 NO LEGAL ADVICE FROM THE COMPANY. The Investor acknowledges that it has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with its own legal counsel and investment and tax advisors. The
Investor is relying solely on such counsel and advisors and not on any statements or representations of the Company or any of
its representatives or agents for legal, tax or investment advice with respect to this investment, the transactions
contemplated by this Agreement or the securities laws of any jurisdiction.


 


Section
3.3 ACCREDITED INVESTOR. The Investor is an accredited investor as defined in Rule 501(a)(3) of Regulation D, and the
Investor has such experience in business and financial matters that it is capable of evaluating the merits and risks of an
investment in the Securities. The Investor acknowledges that an investment in the Securities is speculative and involves a
high degree of risk.


 






    	 	7	 



     


    

 


Section
3.4 AUTHORITY. The Investor has the requisite power and authority to enter into and perform its obligations under
this Agreement and the other Transaction Documents and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the other Transaction Documents and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary action and no further consent or authorization of
the Investor is required. Each Transaction Document to which it is a party has been duly executed by the Investor, and when
delivered by the Investor in accordance with the terms hereof, will constitute the valid and binding obligation of the
Investor enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of
general application.


 


Section
3.5 NOT AN AFFILIATE. The Investor is not an officer, director or “affiliate” (as that term is defined in
Rule 405 of the Securities Act) of the Company.


 


Section
3.6 ORGANIZATION AND STANDING. The Investor is an entity duly incorporated or formed, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership,
limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by
this Agreement and the other Transaction Documents.


 


Section
3.7 ABSENCE OF CONFLICTS. The execution and delivery of this Agreement and the other Transaction Documents, and the
consummation of the transactions contemplated hereby and thereby and compliance with the requirements hereof and thereof,
will not (a) violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Investor,
(b) violate any provision of any indenture, instrument or agreement to which the Investor is a party or is subject, or by
which the Investor or any of its assets is bound, or conflict with or constitute a material default thereunder, (c) result in
the creation or imposition of any lien pursuant to the terms of any such indenture, instrument or agreement, or constitute a
breach of any fiduciary duty owed by the Investor to any third party, or (d) require the approval of any third-party (that
has not been obtained) pursuant to any material contract, instrument, agreement, relationship or legal obligation to which
the Investor is subject or to which any of its assets, operations or management may be subject.


 


Section
3.8 DISCLOSURE; ACCESS TO INFORMATION. The Investor had an opportunity to review copies of the SEC Documents filed on
behalf of the Company and has had access to all publicly available information with respect to the Company.


 


Section
3.9 MANNER OF SALE. At no time was the Investor presented with or solicited by or through any leaflet, public
promotional meeting, television advertisement or any other form of general solicitation or advertising.


 






    	 	8	 



     


    

 


ARTICLE
IV


REPRESENTATIONS
AND WARRANTIES OF THE COMPANY


 


The
Company represents and warrants to the Investor that, except as disclosed in the SEC Documents or except as set forth in the disclosure
schedules hereto:


 


Section
4.1 ORGANIZATION OF THE COMPANY. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization,
with the requisite power and authority to own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective
certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the
Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each
jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to
result in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 


Section
4.2 AUTHORITY. The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement and the other Transaction Documents. The execution and delivery of this Agreement and the other
Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have been
duly authorized by all necessary corporate action and no further consent or authorization of the Company or its Board of
Directors or stockholders is required. Each of this Agreement and the other Transaction Documents has been duly executed and
delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, or similar laws
relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of
general application.


 


Section
4.3 CAPITALIZATION. Except as set forth on Schedule 4.3, the Company has not issued any capital stock since
its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options
under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the
Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of
first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated
by the Transaction Documents. Except as set forth on Schedule 4.3 and except as a result of the purchase and sale of
the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for,
or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of
Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not obligate the Company to issue
shares of Common Stock or other securities to any Person (other than the Investor) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There
are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s
stockholders.


 






    	 	9	 



     


    

 


Section
4.4 LISTING AND MAINTENANCE REQUIREMENTS. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the
Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that
the SEC is contemplating terminating such registration. The Company has not, in the twelve (12) months preceding the date
hereof, received notice from the Principal Market on which the Common Stock is or has been listed or quoted to the effect
that the Company is not in compliance with the listing or maintenance requirements of such Principal Market. The Company is,
and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements.


 


Section
4.5 SEC DOCUMENTS; DISCLOSURE. Except as set forth on Schedule 4.5, the Company has filed all
reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and
the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one (1) year preceding the date hereof (or
such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC
Documents”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC
Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied in all
material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and other federal laws,
rules and regulations applicable to such SEC Documents, and none of the SEC Documents when filed contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of
the Company included in the SEC Documents comply as to form and substance in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other applicable rules and regulations with respect
thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles applied on
a consistent basis during the periods involved (except (a) as may be otherwise indicated in such financial statements or the
notes thereto or (b) in the case of unaudited interim statements, to the extent they may not include footnotes or may be
condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the
dates thereof and the results of operations and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments). Except with respect to the material terms and conditions of
the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other Person
acting on its behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or
might constitute material, non-public information. The Company understands and confirms that the Investor will rely on the
foregoing representation in effecting transactions in securities of the Company.


 






    	 	10	 



     


    

 


Section
4.6 VALID ISSUANCES. The Securities are duly authorized and, when issued and paid for in accordance with the
applicable Transaction Documents, will be duly and validly issued, fully paid, and non-assessable, free and clear of all
Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents.


 


Section
4.7 NO CONFLICTS. The execution, delivery and performance of this Agreement and the other Transaction Documents by the
Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without
limitation, the issuance of the Put Shares and the Underlying Shares, do not and will not: (a) result in a violation of the
Company’s or any Subsidiary’s certificate or articles of incorporation, by-laws or other organizational or
charter documents, (b) conflict with, or constitute a material default (or an event that with notice or lapse of time or both
would become a material default) under, result in the creation of any Lien upon any of the properties or assets of the
Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture, instrument or any “lock-up” or similar provision of any underwriting or similar agreement to
which the Company or any Subsidiary is a party, or (c) result in a violation of any federal, state or local law, rule,
regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company
or any Subsidiary or by which any property or asset of the Company or any Subsidiary is bound or affected (except for such
conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would not, individually or in
the aggregate, have a Material Adverse Effect) nor is the Company otherwise in violation of, conflict with or in
default under any of the foregoing. The business of the Company is not being conducted in violation of any law, ordinance or
regulation of any governmental entity, except for possible violations that either singly or in the aggregate do not and will
not have a Material Adverse Effect. The Company is not required under federal, state or local law, rule or regulation to
obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency in
order for it to execute, deliver or perform any of its obligations under this Agreement or the other Transaction Documents
(other than any SEC, FINRA or state securities filings that may be required to be made by the Company subsequent to any
Closing or any registration statement that may be filed pursuant hereto); provided that, for purposes of the representation
made in this sentence, the Company is assuming and relying upon the accuracy of the relevant representations and agreements
of Investor herein.


 


Section
4.8 NO MATERIAL ADVERSE CHANGE. No event has occurred that would have a Material Adverse Effect on the Company
that has not been disclosed in subsequent SEC filings.


 


Section
4.9 LITIGATION AND OTHER PROCEEDINGS. Except as disclosed in the SEC Documents or as set forth on Schedule
4.9, there are no actions, suits, investigations, inquiries or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective properties, nor has the Company
received any written or oral notice of any such action, suit, proceeding, inquiry or investigation, which would have a
Material Adverse Effect. No judgment, order, writ, injunction or decree or award has been issued by or, to the knowledge of
the Company, requested of any court, arbitrator or governmental agency which would have a Material Adverse Effect. There has
not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving
the Company, any Subsidiary or any current or former director or officer of the Company or any Subsidiary.


 






    	 	11	 



     


    

 


Section
4.10 REGISTRATION RIGHTS. Except as set forth on Schedule 4.10, no
Person (other than the Investor) has any right to cause the Company to effect the registration under the Securities Act of
any securities of the Company or any Subsidiary.


 


ARTICLE
V


COVENANTS
OF INVESTOR


 


Section
5.1 COMPLIANCE WITH LAW; TRADING IN SECURITIES. The Investor’s trading activities with respect to shares of Common
Stock will be in compliance with all applicable state and federal securities laws and regulations and the rules and
regulations of FINRA and the Principal Market.


 


Section
5.2 SHORT SALES AND CONFIDENTIALITY. Neither the Investor, nor any affiliate of the Investor acting on its behalf or
pursuant to any understanding with it, will execute any Short Sales during the period from the date hereof to the end of the
Commitment Period. For the purposes hereof, and in accordance with Regulation SHO, the sale after delivery of a Put Notice of
such number of shares of Common Stock reasonably expected to be purchased under a Put Notice shall not be deemed a Short
Sale. The Investor shall, until such time as the transactions contemplated by this Agreement are publicly disclosed by the
Company in accordance with the terms of this Agreement, maintain the confidentiality of the existence and terms of this
transaction and the information included in the Transaction Documents.


 


ARTICLE
VI


COVENANTS
OF THE COMPANY


 


Section
6.1 RESERVATION OF COMMON STOCK. The Company shall maintain a reserve from its duly authorized shares of Common
Stock equal to 300% of the Required Note in accordance with the terms of this Agreement and the Commitment Note. The Company
shall maintain a reserve from its duly authorized shares of Common Stock equal to 100% of the registered shares remaining to
be issued under the Registration Statement to satisfy its obligation to issue the Put Shares and the Additional Shares in
accordance with the terms of this Agreement.


 


Section
6.2 LISTING OF COMMON STOCK. The Company shall promptly secure the listing of all of the Put Shares and
Underlying Shares to be issued to the Investor hereunder on the Principal Market (subject to official notice of issuance) and
shall use commercially reasonable best efforts to maintain, so long as any shares of Common Stock shall be so listed, the
listing of all such Put Shares and Underlying Shares from time to time issuable hereunder. The Company shall use its
commercially reasonable efforts to continue the listing and trading of the Common Stock on the Principal Market (including,
without limitation, maintaining sufficient net tangible assets) and will comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of FINRA and the Principal Market.


 






    	 	12	 



     


    

 


Section
6.3 OTHER EQUITY LINES AND CONVERTIBLE NOTES. So long as this Agreement remains in effect, the Company
covenants and agrees that it will not, without the prior written consent of the Investor, enter into any other equity line of
credit agreement with any other party or issue any promissory note convertible into common stock to any other party. For the
avoidance of doubt, nothing contained in the Transaction Documents shall restrict, or require the Investor’s consent for, any
agreement providing for the issuance or distribution of any equity securities of the Company pursuant to any agreement or
arrangement that is not covered in this Section 6.3.


 


Section
6.4 FILING OF CURRENT REPORT AND REGISTRATION STATEMENT. The Company agrees that it shall file a Current
Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the SEC within the time required by the
Exchange Act, relating to the transactions contemplated by, and describing the material terms and conditions of, the
Transaction Documents (the “Current Report”). The Company shall permit the Investor to review and comment
upon the final pre-filing draft version of the Current Report at least two (2) Trading Days prior to its filing with the SEC,
and the Company shall give reasonable consideration to all such comments. The Investor shall use its reasonable best efforts
to comment upon the final pre-filing draft version of the Current Report within one (1) Trading Day from the date the
Investor receives it from the Company. The Company shall also file with the SEC, within thirty (30) calendar days from the
date hereof, a new registration statement (the “Registration Statement”) covering only the resale of the
Put Shares, as well as the Underlying Shares (if the Underlying Shares are able to be included in such Registration
Statement). The Company shall use its best efforts to cause the Registration Statement to become effective within ninety (90)
calendar days from the date hereof.


 


ARTICLE
VII


CONDITIONS
TO DELIVERY OF


PUT
NOTICES AND CONDITIONS TO CLOSING


 


Section
7.1 CONDITIONS PRECEDENT TO THE RIGHT OF THE COMPANY TO ISSUE AND SELL PUT SHARES. The right of the
Company to issue and sell the Put Shares to the Investor is subject to the satisfaction of each of the conditions set forth
below:


 


(a)             ACCURACY OF INVESTOR’S REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Investor shall be true
and correct in all material respects as of the date of this Agreement and as of the date of each Closing as though made at each
such time.


 


(b)             PERFORMANCE BY INVESTOR. Investor shall have performed, satisfied and complied in all respects with all covenants, agreements
and conditions required by this Agreement to be performed, satisfied or complied with by the Investor at or prior to such Closing.


 






    	 	13	 



     


    

 


(c)       PRINCIPAL
MARKET REGULATION. The Company shall not issue any Put Shares, and the Investor shall not have the right to receive any
Put Shares, if the issuance of such Put Shares would exceed the aggregate number of shares of Common Stock which the Company
may issue without breaching the Company’s obligations under the rules or regulations of the Principal Market (the “Exchange Cap”).


 


Section
7.2 CONDITIONS PRECEDENT TO THE OBLIGATION OF INVESTOR TO PURCHASE PUT SHARES. The obligation of the
Investor hereunder to purchase Put Shares is subject to the satisfaction of each of the following conditions:


 


(a)             EFFECTIVE REGISTRATION STATEMENT. The Registration Statement, and any amendment or supplement thereto, shall remain effective
for the resale by the Investor of the Put Shares and the Underlying Shares and (i) neither the Company nor the Investor shall
have received notice that the SEC has issued or intends to issue a stop order with respect to such Registration Statement or that
the SEC otherwise has suspended or withdrawn the effectiveness of such Registration Statement, either temporarily or permanently,
or intends or has threatened to do so and (ii) no other suspension of the use of, or withdrawal of the effectiveness of, such
Registration Statement or related prospectus shall exist.


 


(b)             ACCURACY OF THE COMPANY’S REPRESENTATIONS AND WARRANTIES. The representations and warranties of the Company shall be true
and correct in all material respects as of the date of this Agreement and as of the date of each Closing (except for representations
and warranties specifically made as of a particular date).


 


(c)             PERFORMANCE BY THE COMPANY. The Company shall have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company.


 


(d)             NO INJUNCTION. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered,
promulgated or adopted by any court or governmental authority of competent jurisdiction that prohibits or directly and materially
adversely affects any of the transactions contemplated by the Transaction Documents, and no proceeding shall have been commenced
that may have the effect of prohibiting or materially adversely affecting any of the transactions contemplated by the Transaction
Documents.


 


(e)             ADVERSE CHANGES. Since the date of filing of the Company’s most recent SEC Document, no event that had or is reasonably
likely to have a Material Adverse Effect has occurred.


 


(f)              NO
SUSPENSION OF TRADING IN OR DELISTING OF COMMON STOCK. The trading of the Common Stock shall not have been suspended by
the SEC, the Principal Market or FINRA, or otherwise halted for any reason, and the Common Stock shall have been approved for
listing or quotation on and shall not have been delisted from the Principal Market. In the event of a suspension, delisting,
or halting for any reason, of the trading of the Common Stock, as contemplated by this Section 7.2(f), the Investor shall
have the right to return to the Company any remaining amount of Put Shares associated with such Put, and the Purchase Price
with respect to such Put shall be reduced accordingly.


 






    	 	14	 



     


    

 


(g)             BENEFICIAL OWNERSHIP LIMITATION. The number of Put Shares then to be purchased by the Investor shall not exceed the number
of such shares that, when aggregated with all other shares of Common Stock then owned by the Investor beneficially or deemed beneficially
owned by the Investor, would result in the Investor owning more than the Beneficial Ownership Limitation (as defined below), as
determined in accordance with Section 16 of the Exchange Act and the regulations promulgated thereunder. For purposes of this
Section 7.2(g), in the event that the amount of Common Stock outstanding, as determined in accordance with Section 16 of the Exchange
Act and the regulations promulgated thereunder, is greater on a Closing Date than on the date upon which the Put Notice associated
with such Closing Date is given, the amount of Common Stock outstanding on such Closing Date shall govern for purposes of determining
whether the Investor, when aggregating all purchases of Common Stock made pursuant to this Agreement, would own more than the
Beneficial Ownership Limitation following such Closing Date. The “Beneficial Ownership Limitation” shall be
4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common
Stock issuable pursuant to a Put Notice.


 


(h)             PRINCIPAL MARKET REGULATION. The issuance of the Put Shares shall not exceed the Exchange Cap.


 


(i)               NO KNOWLEDGE. The Company shall have no knowledge of any event more likely than not to have the effect of causing the Registration
Statement to be suspended or otherwise ineffective (which event is more likely than not to occur within the fifteen (15) Trading
Days following the Trading Day on which such Put Notice is deemed delivered).


 


(j)               NO VIOLATION OF SHAREHOLDER APPROVAL REQUIREMENT. The issuance of the Put Shares shall not violate the shareholder approval
requirements of the Principal Market.


 


(k)              OFFICER’S CERTIFICATE. On the date of delivery of each Put Notice, the Investor shall have received the Closing Certificate
executed by an executive officer of the Company and to the effect that all the conditions to such Closing shall have been satisfied
as of the date of each such certificate.


 


(l)               DWAC ELIGIBLE. The Common Stock must be DWAC Eligible and not subject to a “DTC chill.”


 


(m)             SEC DOCUMENTS. All reports, schedules, registrations, forms, statements, information and other documents required to have
been filed by the Company with the SEC pursuant to the reporting requirements of the Exchange Act shall have been filed with the
SEC within the applicable time periods prescribed for such filings under the Exchange Act.


 






    	 	15	 



     


    

 


(n)             TRANSFER AGENT INSTRUCTION LETTER. The Transfer Agent Instruction Letter shall have been executed and delivered by the
Company to the Transfer Agent and acknowledged and agreed to in writing by the Transfer Agent.


 


(o)             RESERVE. The Company shall have reserved sufficient shares of its Common Stock for the Investor, pursuant to the terms
of this Agreement and all other contracts between the Company and Investor.


 


(p)             TRUE-UP RESERVE. The Company shall not have the right to deliver a Put Notice to Investor if the registered shares of Common
Stock reserved by the Company’s transfer agent for issuance of the Put Shares and Additional Shares hereunder is less than
200% of the amount of Put Shares identified in the respective Put Notice.


 


ARTICLE
VIII


LEGENDS


 


Section
8.1 NO RESTRICTIVE STOCK LEGEND. No restrictive stock legend shall be placed on the share certificates representing
the Put Shares.


 


Section
8.2 INVESTOR’S COMPLIANCE. Nothing in this Article VIII shall affect in any way the Investor’s obligations hereunder
to comply with all applicable securities laws upon the sale of the Common Stock.


 


ARTICLE
IX


 


NOTICES;
INDEMNIFICATION


 


Section
9.1 NOTICES. All notices, demands, requests, consents, approvals, and other communications required or permitted
hereunder shall be in writing and, unless otherwise specified herein, shall be (a) personally served, (b) deposited in the
mail, registered or certified, return receipt requested, postage prepaid, (c) delivered by reputable air courier service with
charges prepaid, or (d) transmitted by hand delivery, telegram, or email as a PDF, addressed as set forth below or to such
other address as such party shall have specified most recently by written notice given in accordance herewith. Any notice or
other communication required or permitted to be given hereunder shall be deemed effective (i) upon hand delivery or delivery
by email at the address designated below (if delivered on a business day during normal business hours where such notice is to
be received), or the first business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (ii) on the second business day following the date of mailing by
express courier service or on the fifth business day after deposited in the mail, in each case, fully prepaid, addressed to
such address, or upon actual receipt of such mailing, whichever shall first occur.


 






    	 	16	 



     


    

 


The
addresses for such communications shall be:


 


If to the Company:


 


NIGHTFOOD
HOLDINGS, INC.


 


520
White Plains Road, Suite 500


Tarrytown,
NY 10591


E-mail:
Nightfood@nightfood.com


 


If to the Investor:


 


BLACK
FOREST CAPITAL, LLC 


81
Prospect St.


Brooklyn, NY 11201


Email:
Contact@BlackForest.Capital


 


Either
party hereto may from time to time change its address or email for notices under this Section 9.1 by giving at least ten (10)
days’ prior written notice of such changed address to the other party hereto.


 


Section
9.2 INDEMNIFICATION. Each party (an “Indemnifying Party”) agrees to indemnify and hold harmless the
other party along with its officers, directors, employees, and authorized agents, and each Person or entity, if any, who
controls such party within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (an “Indemnified
Party”) from and against any Damages, joint or several, and any action in respect thereof to which the Indemnified
Party becomes subject to, resulting from, arising out of or relating to (i) any misrepresentation, breach of warranty or
nonfulfillment of or failure to perform any covenant or agreement on the part of the Indemnifying Party contained in this
Agreement, (ii) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or any post-effective amendment thereof or supplement thereto, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein not misleading, (iii) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary prospectus or contained in the final prospectus (as
amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or
alleged omission to state therein any material fact necessary to make the statements made therein, in the light of the
circumstances under which the statements therein were made, not misleading, or (iv) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities law or any rule or regulation under the Securities Act,
the Exchange Act or any state securities law, as such Damages are incurred, except to the extent such Damages result
primarily from the Indemnified Party’s failure to perform any covenant or agreement contained in this Agreement or the
Indemnified Party’s negligence, recklessness or bad faith in performing its obligations under this Agreement; provided,
however, that the foregoing indemnity agreement shall not apply to any Damages of an Indemnified Party to the extent, but
only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or
alleged omission made by an Indemnifying Party in reliance upon and in conformity with written information furnished to the
Indemnifying Party by the Indemnified Party expressly for use in the Registration Statement, any post-effective amendment
thereof or supplement thereto, or any preliminary prospectus or final prospectus (as amended or supplemented).


 






    	 	17	 



     


    

 


Section
9.3 METHOD OF ASSERTING INDEMNIFICATION CLAIMS. All claims for indemnification by any Indemnified Party under Section
9.2 shall be asserted and resolved as follows:


 


(a)              In
the event any claim or demand in respect of which an Indemnified Party might seek indemnity under Section 9.2 is asserted
against or sought to be collected from such Indemnified Party by a Person other than a party hereto or an affiliate thereof
(a “Third Party Claim”), the Indemnified Party shall deliver a written notification, enclosing a copy of all
papers served, if any, and specifying the nature of and basis for such Third Party Claim and for the Indemnified Party’s
claim for indemnification that is being asserted under any provision of Section 9.2 against an Indemnifying Party, together
with the amount or, if not then reasonably ascertainable, the estimated amount, determined in good faith, of such Third Party
Claim (a “Claim Notice”) with reasonable promptness to the Indemnifying Party. If the Indemnified Party
fails to provide the Claim Notice with reasonable promptness after the Indemnified Party receives notice of such Third Party
Claim, the Indemnifying Party shall not be obligated to indemnify the Indemnified Party with respect to such Third Party
Claim to the extent that the Indemnifying Party’s ability to defend has been prejudiced by such failure of the Indemnified
Party. The Indemnifying Party shall notify the Indemnified Party as soon as practicable within the period ending thirty (30)
calendar days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity Notice (as defined below)
(the “Dispute Period”) whether the Indemnifying Party disputes its liability or the amount of its liability
to the Indemnified Party under Section 9.2 and whether the Indemnifying Party desires, at its sole cost and expense, to
defend the Indemnified Party against such Third Party Claim.


 


(i)              If
the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to
defend the Indemnified Party with respect to the Third Party Claim pursuant to this Section 9.3(a), then the Indemnifying
Party shall have the right to defend, with counsel reasonably satisfactory to the Indemnified Party, at the sole cost and
expense of the Indemnifying Party, such Third Party Claim by all appropriate proceedings, which proceedings shall be
vigorously and diligently prosecuted by the Indemnifying Party to a final conclusion or will be settled at the discretion of
the Indemnifying Party (but only with the consent of the Indemnified Party in the case of any settlement that provides for
any relief other than the payment of monetary damages or that provides for the payment of monetary damages as to which the
Indemnified Party shall not be indemnified in full pursuant to Section 9.2). The Indemnifying Party shall have full control
of such defense and proceedings, including any compromise or settlement thereof; provided, however, that the
Indemnified Party may, at the sole cost and expense of the Indemnified Party, at any time prior to the Indemnifying Party’s
delivery of the notice referred to in the first sentence of this clause (i), file any motion, answer or other pleadings or
take any other action that the Indemnified Party reasonably believes to be necessary or appropriate to protect its interests;
and provided, further, that if requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and
expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third Party
Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense
or settlement of any Third Party Claim controlled by the Indemnifying Party pursuant to this clause (i), and except as
provided in the preceding sentence, the Indemnified Party shall bear its own costs and expenses with respect to
such participation. Notwithstanding the foregoing, the Indemnified Party may takeover the control of the defense or
settlement of a Third Party Claim at any time if it irrevocably waives its right to indemnity under Section 9.2 with respect
to such Third Party Claim.


 






    	 	18	 



     


    

 


(ii)             If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires
to defend the Third Party Claim pursuant to Section 9.3(a), or if the Indemnifying Party gives such notice but fails to prosecute
vigorously and diligently or settle the Third Party Claim, or if the Indemnifying Party fails to give any notice whatsoever within
the Dispute Period, then the Indemnified Party shall have the right to defend, at the sole cost and expense of the Indemnifying
Party, the Third Party Claim by all appropriate proceedings, which proceedings shall be prosecuted by the Indemnified Party in
a reasonable manner and in good faith or will be settled at the discretion of the Indemnified Party(with the consent of the Indemnifying
Party, which consent will not be unreasonably withheld). The Indemnified Party will have full control of such defense and proceedings,
including any compromise or settlement thereof; provided, however, that if requested by the Indemnified Party, the Indemnifying
Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and
its counsel in contesting any Third Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions
of this clause (ii), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying
Party disputes its liability or the amount of its liability hereunder to the Indemnified Party with respect to such Third Party
Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in clause (iii) below, the Indemnifying
Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this clause (ii) or of
the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party shall reimburse the
Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such litigation.
The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant
to this clause (ii), and the Indemnifying Party shall bear its own costs and expenses with respect to such participation.


 


(iii)            If the Indemnifying Party notifies the Indemnified Party that it does not dispute its liability or the amount of its liability
to the Indemnified Party with respect to the Third Party Claim under Section 9.2 or fails to notify the Indemnified Party within
the Dispute Period whether the Indemnifying Party disputes its liability or the amount of its liability to the Indemnified Party
with respect to such Third Party Claim, the amount of Damages specified in the Claim Notice shall be conclusively deemed a liability
of the Indemnifying Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages to the Indemnified
Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability with respect to such
claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution of such dispute;
provided, however, that if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying
Party shall be entitled to institute such legal action as it deems appropriate.


 






    	 	19	 



     


    

 


(b)             In
the event any Indemnified Party should have a claim under Section 9.2 against the Indemnifying Party that does not involve a Third
Party Claim, the Indemnified Party shall deliver a written notification of a claim for indemnity under Section 9.2 specifying
the nature of and basis for such claim, together with the amount or, if not then reasonably ascertainable, the estimated amount,
determined in good faith, of such claim (an "Indemnity Notice") with reasonable promptness to the Indemnifying
Party. The failure by any Indemnified Party to give the Indemnity Notice shall not impair such party's rights hereunder except
to the extent that the Indemnifying Party demonstrates that it has been irreparably prejudiced thereby. If the Indemnifying Party
notifies the Indemnified Party that it does not dispute the claim or the amount of the claim described in such Indemnity Notice
or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim or the amount
of the claim described in such Indemnity Notice, the amount of Damages specified in the Indemnity Notice will be conclusively
deemed a liability of the Indemnifying Party under Section 9.2 and the Indemnifying Party shall pay the amount of such Damages
to the Indemnified Party on demand. If the Indemnifying Party has timely disputed its liability or the amount of its liability
with respect to such claim, the Indemnifying Party and the Indemnified Party shall proceed in good faith to negotiate a resolution
of such dispute; provided, however, that if the dispute is not resolved within thirty (30) days after the Claim Notice, the Indemnifying
Party shall be entitled to institute such legal action as it deems appropriate.


 


(c)            The Indemnifying Party agrees to pay the Indemnified Party, promptly as such expenses are incurred and are due and payable, for
any reasonable legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such
Claim.


 


(d)            The indemnity provisions contained herein shall be in addition to (i) any cause of action or similar rights of the Indemnified
Party against the Indemnifying Party or others, and (ii) any liabilities the Indemnifying Party may be subject to.


 


ARTICLE
X


 


MISCELLANEOUS


 


Section
10.1 GOVERNING LAW; JURISDICTION. This Agreement shall be governed by and interpreted in accordance with the laws of
the State of New York without regard to the principles of conflicts of law. Each of the Company and the Investor hereby
submits to the exclusive jurisdiction of the United States federal and state courts located in the City of New York, with
respect to any dispute arising under the Transaction Documents or the transactions contemplated thereby.


 


Section
10.2 JURY TRIAL WAIVER. The Company and the Investor hereby waive a trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other in respect of any matter arising out of or in
connection with the Transaction Documents.


 


Section
10.3 ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the Company and the Investor and
their respective successors. Neither this Agreement nor any rights of the Investor or the Company hereunder may be assigned
by either party to any other Person.


 






    	 	20	 



     


    

 


Section
10.4 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the benefit of the Company and the Investor and
their respective successors, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person,
except as set forth in Section 9.3.


 


Section
10.5 TERMINATION. The Company may terminate this Agreement at any time by written notice to the Investor, except
during any Valuation Period. In addition, this Agreement shall automatically terminate on the earlier of (i) the end of the
Commitment Period; (ii) the date that the Company sells and the Investor purchases the Maximum Commitment Amount; (iii) the
date in which the Registration Statement is no longer effective; or (iv) the date that, pursuant to or within the meaning of
any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against the Company, a
Custodian is appointed for the Company or for all or substantially all of its property or the Company makes a general
assignment for the benefit of its creditors; provided, however, that the provisions of Articles III, IV, V, VI, IX and
the agreements and covenants of the Company and the Investor set forth in Article X shall survive the termination of this
Agreement.


 


Section
10.6 ENTIRE AGREEMENT. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire
understanding of the Company and the Investor with respect to the matters covered herein and therein and supersede all prior
agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.


 


Section
10.7 FEES AND EXPENSES. Except as expressly set forth in the Transaction Documents or any other writing to the
contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day
processing of any instruction letter delivered by the Company), stamp taxes and other taxes and duties levied in connection
with the delivery of any Securities to the Investor. The Commitment Note shall be earned in full upon the execution of the
Term Sheet, and the Commitment Note is not contingent upon any other event or condition, including but not limited to the
effectiveness of the Registration Statement or the Company’s submission of a Put Notice to the Investor.


 


Section
10.8 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each of which may be executed by less than
all of the parties and shall be deemed to be an original instrument which shall be enforceable against the parties actually
executing such counterparts and all of which together shall constitute one and the same instrument. This Agreement may be
delivered to the other parties hereto by email of a copy of this Agreement bearing the signature of the parties so delivering
this Agreement.


 


Section
10.9 SEVERABILITY. In the event that any provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said
provision; provided that such severability shall be ineffective if it materially changes the economic benefit of this
Agreement to any party.


 






    	 	21	 



     


    

 


Section
10.10 FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed, all such further acts
and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.


 


Section
10.11 NO STRICT CONSTRUCTION. The language used in this Agreement will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will be applied against any party.


 


Section
10.12 EQUITABLE RELIEF. The Company recognizes that in the event that it fails to perform, observe, or discharge any
or all of its obligations under this Agreement, any remedy at law may prove to be inadequate relief to the Investor. The
Company therefore agrees that the Investor shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.


 


Section
10.13 TITLE AND SUBTITLES. The titles and subtitles used in this Agreement are used for the convenience of reference
and are not to be considered in construing or interpreting this Agreement.


 


Section
10.14 AMENDMENTS; WAIVERS. No provision of this Agreement may be amended or waived by the parties from and after the
date that is one (1) Trading Day immediately preceding the initial filing of the Registration Statement with the SEC. Subject
to the immediately preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument
signed by both parties hereto and (ii) no provision of this Agreement may be waived other than in a written instrument signed
by the party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right, power or privilege.


 


Section
10.15 PUBLICITY. The Company and the Investor shall consult with each other in issuing any press releases or
otherwise making public statements with respect to the transactions contemplated hereby and no party shall issue any such
press release or otherwise make any such public statement, other than as required by law, without the prior written consent
of the other parties, which consent shall not be unreasonably withheld or delayed, except that no prior consent shall be
required if such disclosure is required by law, in which such case the disclosing party shall provide the other party with
prior notice of such public statement. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the
Investor without the prior written consent of the Investor, except to the extent required by law. The Investor acknowledges
that this Agreement and all or part of the Transaction Documents may be deemed to be “material contracts,” as that
term is defined by Item 601(b)(10) of Regulation S-K, and that the Company may therefore be required to file such documents
as exhibits to reports or registration statements filed under the Securities Act or the Exchange Act. The Investor further
agrees that the status of such documents and materials as material contracts shall be determined solely by the Company, in
consultation with its counsel.


 


[Signature
Page Follows]


 






    	 	22	 



     


    

 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed by their respective officers thereunto duly authorized
as of the day and year first above written.


 





	 	NIGHTFOOD HOLDINGS, INC.
	 	 	 
	 	By:	/s/ Sean Folkson
	 	Name: 	Sean Folkson
	 	Title: 	Chief Executive Officer
	 	 	 
	 	BLACK FOREST CAPITAL, LLC
	 	 	 
	 	By:	/s/ Max Riccio
	 	Name: 	Max Riccio
	 	Title: 	Authorized Signer




 


[Signature
Page to equity purchase agreement]


 




    


     

    

 


DISCLOSURE
SCHEDULES TO 

EQUITY PURCHASE AGREEMENT


 


Schedule
4.3 – Capitalization


 


None.


 


Schedule
4.5 – SEC Documents


 


None.


 


Schedule
4.9 – Litigation


 


None.


 


Schedule
4.10 – Registration Rights


 


None.


 




    


     

    

 


EXHIBIT
A


 


FORM
OF PUT NOTICE


 


TO:
BLACK FOREST CAPITAL, LLC


DATE:
                                         


 


We
refer to the equity purchase agreement, dated February 8, 2017 (the “Agreement”), entered into by and between
Nightfood Holdings, Inc. and you. Capitalized terms defined in the Agreement shall, unless otherwise defined herein, have the
same meaning when used herein.


 


We
hereby:


 


1)
Give you notice that we require you to purchase ____________Put Shares based on an initial put amount of $____________(the
actual Purchase Price to be received by the Company shall be calculated at the end of the Valuation Period); and


 


2)
Certify that, as of the date hereof, the conditions set forth in Agreement, including but not limited to Section 7.2, are
satisfied.


 





	 	NIGHTFOOD HOLDINGS, INC.
	 	 	 
	 	By:	 
	 	Name:	Sean Folkson
	 	Title:	Chief Executive Officer




 




    


     

    

 


EXHIBIT
B


 


FORM
OF OFFICER’S CERTIFICATE

OF NIGHTFOOD HOLDINGS, INC.


 


Pursuant
to Section 7.2(k) of that certain equity purchase agreement, dated February 8, 2017 (the “Agreement”), by and
between Nightfood Holdings, Inc. (the “Company”) and Black Forest Capital, LLC (the “Investor”),
the undersigned, in his capacity as Chief Executive Officer of the Company, and not in his individual capacity, hereby certifies,
as of the date hereof (such date, the “Condition Satisfaction Date”), the following:


 


1.       The
representations and warranties of the Company are true and correct in all material respects as of the Condition Satisfaction Date
as though made on the Condition Satisfaction Date (except for representations and warranties specifically made as of a particular
date) with respect to all periods, and as to all events and circumstances occurring or existing to and including the Condition
Satisfaction Date, except for any conditions which have temporarily caused any representations or warranties of the Company set
forth in the Agreement to be incorrect and which have been corrected with no continuing impairment to the Company or the Investor;
and


 


2.       All
of the conditions precedent to the obligation of the Investor to purchase Put Shares set forth in the Agreement, including but
not limited to Section 7.2 of the Agreement, have been satisfied as of the Condition Satisfaction Date.


 


Capitalized
terms used herein shall have the meanings set forth in the Agreement unless otherwise defined herein.


 


IN
WITNESS WHEREOF, the undersigned has hereunto affixed his hand as of the February 8, 2017.


 








	 	By:	 
	 	Name:	Sean Folkson
	 	Title:	Chief Executive Officer




 




    


     

    

 


EXHIBIT
C


 


COMMITMENT
NOTE


 




    


     

    

 


EXHIBIT
D


 


FORM
OF TRANSFER AGENT INSTRUCTION LETTER


 




    


     

    

 


EXHIBIT
E


 


Date:
__________________


 


[COMPANY]


 


[ADDRESS]


 


TRUE-UP
NOTICE


 


The
Investor hereby gives notice to Nightfood Holdings, Inc., a Nevada corporation (the “Company”), pursuant to
that certain Equity Purchase Agreement dated February 8, 2017, by and between the Company and the Investor (the “Purchase
Agreement”), that the Investor elects to receive fully paid and non-assessable Additional Shares pursuant to the Purchase
Agreement. Such Additional Shares shall be calculated as set forth below.


 


A.       True-Up
Price: _______


 


B.       Purchase
Price: _______


 


C.       Put
Shares:  _______


 


D.       Additional
Shares to be Issued: _______


 


Please
transfer the Additional Shares electronically (via DWAC) to the following account:


 





	Broker:	Address:	 
	DTC#:	 	 
	Account
    #:	 	 
	Account
    Name: Black Forest Capital, LLC	 	 




 


To
the extent the Additional Shares are not able to be delivered to the Investor electronically via the DWAC system, please deliver
a certificate representing all such shares to the Investor via reputable overnight courier after receipt of this True-Up Notice
(by facsimile transmission or otherwise) to:


 





	 	 	 
	 	 	 
	 	 	 



 


Sincerely,


 


Black
Forest Capital, LLC


 


	By:	 	 
	Name: 	 	 
	Title: