Exhibit
10.2


 


NEITHER
THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE
HAVE 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 TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM
REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD
PURSUANT TO RULE 144 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(c)(iii) AND 20(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND,
ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT
TO SECTION 3(c)(iii) OF THIS NOTE.


 


THIS
NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), DENNIS
MCGRATH, A REPRESENTATIVE OF THE COMPANY HEREOF WILL, BEGINNING TEN DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE
TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION §1.1275-3(b)(1)(i). HE MAY BE REACHED AT TELEPHONE
NUMBER (212) 949 - 4319.


 


PAVmed
Inc.


 


Senior
Convertible Note


 


	Issuance
    Date: August 5, 2020	Original
                                         Principal Amount: U.S. $7,750,000






 


FOR
VALUE RECEIVED, PAVmed Inc., a Delaware corporation (the “Company”), hereby promises to pay to the order
of Alto Opportunity Master Fund, SPC-Segregated Master Portfolio B or its registered assigns (“Holder”) the
amount set forth above as the Original Principal Amount (as reduced pursuant to the terms hereof pursuant to redemption, conversion
or otherwise, the “Principal”) when due, whether upon the Maturity Date, or upon acceleration, redemption or
otherwise (in each case in accordance with the terms hereof) and to pay interest (“Interest”) on any outstanding
Principal at the applicable Interest Rate (as defined below) from the date set forth above as the Issuance Date (the “Issuance
Date”) until the same becomes due and payable, whether upon the Maturity Date, or upon acceleration, conversion, redemption
or otherwise (in each case in accordance with the terms hereof). This Senior Convertible Note (including all Senior Convertible
Notes issued in exchange, transfer or replacement hereof, this “Note”) is one of an issue of Senior Convertible
Notes issued pursuant to the Securities Purchase Agreement, dated as of August 5, 2020 (the “Subscription Date”),
by and among the Company and the investors (the “Buyers”) referred to therein, as amended from time to time
(collectively, the “Notes”, and such other Senior Convertible Notes, the “Other Notes”).
Certain capitalized terms used herein are defined in Section 33.


 






    	 



     


    

 


1.       PAYMENTS
OF PRINCIPAL. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal,
accrued and unpaid Interest and accrued and unpaid Late Charges (as defined in Section 26(c)) on such Principal and Interest.
Other than as specifically permitted by this Note, the Company 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.


 


2.       INTEREST;
INTEREST RATE.


 


(a)       Interest
on this Note shall commence accruing on the Issuance Date and shall be computed on the basis of a 360-day year and twelve 30-day
months and shall be payable in arrears on each Interest Date and shall compound each calendar month and shall be payable in accordance
with the terms of this Note. Interest shall be paid on each Interest Date in cash.


 


(b)       Prior
to the payment of Interest on an Interest Date, Interest on this Note shall accrue at the Interest Rate and be payable by way
of inclusion of the Interest in the Conversion Amount on each Conversion Date in accordance with Section 3(b) or upon any redemption
in accordance with Section 10 or any required payment upon any Bankruptcy Event of Default. From and after the occurrence and
during the continuance of any Event of Default, the Interest Rate shall automatically be increased to eighteen percent (18.0%)
per annum (the “Default Rate”). In the event that such Event of Default is subsequently cured (and no other
Event of Default then exists (including, without limitation, for the Company’s failure to pay such Interest at the Default
Rate on the applicable Interest Date)), the adjustment referred to in the preceding sentence shall cease to be effective as of
the calendar day immediately following 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 such cure of such Event of Default.


 


3.       CONVERSION
OF NOTES. At any time after the Issuance Date, this Note shall be convertible into validly issued, fully paid and non-assessable
shares of Common Stock (as defined below), on the terms and conditions set forth in this Section 3.


 


(a)       Conversion
Right. Subject to the provisions of Section 3(d), at any time or times on or after the Issuance Date, the Holder shall be
entitled to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into validly issued, fully
paid and non-assessable shares of Common Stock in accordance with Section 3(c), at the Conversion Rate (as defined below). The
Company shall not issue any fraction of a share of Common Stock upon any conversion. If the issuance would result in the issuance
of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up to the nearest whole
share. The Company shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation,
fees and expenses of the Transfer Agent (as defined below)) that may be payable with respect to the issuance and delivery of Common
Stock upon conversion of any Conversion Amount.


 




    	2



     


    

 


(b)       Conversion
Rate. The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall
be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).


 


(i)       “Conversion
Amount” means the sum of (x) portion of the Principal to be converted, redeemed or otherwise with respect to which this
determination is being made and (y) all accrued and unpaid Interest with respect to such portion of the Principal amount and accrued
and unpaid Late Charges with respect to such portion of such Principal and such Interest, if any.


 


(ii)       “Conversion
Price” means, as of any Conversion Date or other date of determination, $5.00, subject to adjustment as provided herein.


 


(c)       Mechanics
of Conversion.


 


(i)       Optional
Conversion. To convert any Conversion Amount into shares of Common Stock on any date (a “Conversion Date”),
the Holder shall deliver (whether via facsimile, electronic mail or otherwise), for receipt on or prior to 6:00 p.m., New York
time, on such date, a copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion
Notice”) to the Company. If required by Section 3(c)(iii), within two (2) Trading Days following a conversion of this
Note as aforesaid, the Holder shall surrender this Note to a nationally recognized overnight delivery service for delivery to
the Company (or an indemnification undertaking with respect to this Note in the case of its loss, theft or destruction as contemplated
by Section 20(b)). On or before the first (1st) Trading Day following the date of receipt of a Conversion Notice (it being agreed
that the date of receipt shall be determined in accordance with Section 9(f) of the Securities Purchase Agreement), the Company
shall transmit by facsimile or electronic mail an acknowledgment of confirmation and representation as to whether such shares
of Common Stock may then be resold pursuant to Rule 144 or an effective and available registration statement, in the form attached
hereto as Exhibit II, of receipt of such Conversion Notice to the Holder and the Company’s transfer agent (the “Transfer
Agent”) which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in
accordance with the terms herein. On or before the second (2nd) Trading Day following the date on which the Company has received
a Conversion Notice (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for
the settlement of a trade initiated on the applicable Conversion Date of such shares of Common Stock issuable pursuant to such
Conversion Notice) (the “Share Delivery Deadline”), the Company shall (1) provided that the Transfer Agent
is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program and the
shares of Common Stock to be issued are then covered by an effective, usable resale registration statement or may otherwise be
resold under Rule 144, credit such aggregate number of shares of Common Stock to which the Holder shall be entitled pursuant to
such conversion to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian
system or (2) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or the shares of
Common Stock that are to be issued are not covered by an effective, usable resale registration statement and may not be resold
under Rule 144, upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified
in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, for the number of shares of Common
Stock to which the Holder shall be entitled pursuant to such conversion. If this Note is physically surrendered for conversion
pursuant to Section 3(c)(iii) and the outstanding Principal of this Note is greater than the Principal portion of the Conversion
Amount being converted, then the Company shall as soon as practicable and in no event later than two (2) Business Days after receipt
of this Note and at its own expense, issue and deliver to the Holder (or its designee) a new Note (in accordance with Section
20(d)) representing the outstanding Principal not converted. The Person or Persons entitled to receive the shares of Common Stock
issuable upon a conversion of this Note shall be treated for all purposes as the record holder or holders of such shares of Common
Stock on the Conversion Date.


 









    	3



     


    

 


(ii)       Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share
Delivery Deadline, if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, to issue
and deliver to the Holder (or its designee) a certificate for the number of shares of Common Stock to which the Holder is entitled
and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in the
DTC Fast Automated Securities Transfer Program and the shares of Common Stock to be issued are then covered by an effective, usable
resale registration statement or may otherwise be resold under Rule 144, to credit the balance account of the Holder or the Holder’s
designee with DTC for such number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion
of this Note (as the case may be) (each, a “Conversion Failure”), then, in addition to all other remedies available
to the Holder, (1) the Company shall pay in cash to the Holder on each day after such Share Delivery Deadline that the issuance
of such shares of Common Stock is not timely effected an amount equal to 1% of the product of (A) the sum of the number of shares
of Common Stock not issued to the Holder on or prior to the Share Delivery Deadline and to which the Holder is entitled, multiplied
by (B) any trading price of the Common Stock selected by the Holder in writing as in effect at any time during the period beginning
on the applicable Conversion Date and ending on the applicable Share Delivery Deadline and (2) the Holder, upon written notice
to the Company, may void its Conversion Notice with respect to, and retain or have returned (as the case may be) any portion of
this Note that has not been converted pursuant to such Conversion Notice, provided that the voiding of a Conversion Notice shall
not affect the Company’s obligations to make any payments which have accrued prior to the date of such notice pursuant to
this Section 3(c)(ii) or otherwise. In addition to the foregoing, if on or prior to the Share Delivery Deadline if the Transfer
Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company shall fail to issue and deliver
to the Holder (or its designee) a certificate and register such shares of Common Stock on the Company’s share register or,
if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, the Transfer Agent shall fail to
credit the balance account of the Holder or the Holder’s designee with DTC for the number of shares of Common Stock to which
the Holder is entitled upon the Holder’s conversion hereunder or pursuant to the Company’s obligation pursuant to
clause (II) below, and if on or after such Share Delivery Deadline the Holder purchases (in an open market transaction or otherwise)
shares of Common Stock corresponding to all or any portion of the number of shares of Common Stock issuable upon such conversion
that the Holder is entitled to receive from the Company and has not received from the Company in connection with such Conversion
Failure, as applicable (a “Buy-In”), then, in addition to all other remedies available to the Holder, the Company
shall, within two (2) Business Days after receipt of the Holder’s request and in the Holder’s discretion, either:
(I) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including brokerage commissions and
other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including, without limitation, by any other
Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point the Company’s obligation
to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit the balance account of such Holder
or such Holder’s designee, as applicable, with DTC for the number of shares of Common Stock to which the Holder is entitled
upon the Holder’s conversion hereunder (as the case may be) (and to issue such shares of Common Stock) shall terminate,
or (II) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing such shares
of Common Stock or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the
number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder (as the case may
be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (x) such number
of shares of Common Stock multiplied by (y) the lowest Closing Sale Price of the Common Stock on any Trading Day during the period
commencing on the date of the applicable Conversion Notice and ending on the date of such issuance and payment under this clause
(II) (the “Buy-In Payment Amount”). Nothing shall limit the Holder’s right to pursue any other remedies
available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive
relief with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically
deliver such shares of Common Stock) upon the conversion of this Note as required pursuant to the terms hereof.


 




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(iii)       Registration;
Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and
addresses of the holders of each Note and the principal amount of the Notes 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 hereunder) notwithstanding notice to the contrary.
A Registered Note may be assigned, transferred or sold in whole or in part only by registration of such assignment or sale on
the Register. Upon its receipt of a written request to assign, transfer or sell all or part of any Registered Note by the holder
thereof, the Company shall record the information contained therein in the Register and issue one or more new Registered Notes
in the same aggregate principal amount as the principal amount of the surrendered Registered Note to the designated assignee or
transferee pursuant to Section 20, provided that if the Company does not so record an assignment, transfer or sale (as the case
may be) of all or part of any Registered Note within two (2) Business Days of such a request, then the Register shall be automatically
deemed updated to reflect such assignment, transfer or sale (as the case may be). Notwithstanding anything to the contrary set
forth in this Section 3, following conversion of any portion of this Note in accordance with the terms hereof, the Holder shall
not be required to physically surrender this Note to the Company unless (A) the full Conversion Amount represented by this Note
is being converted (in which event this Note shall be delivered to the Company following conversion thereof as contemplated by
Section 3(c)(i)) or (B) the Holder has provided the Company with prior written notice (which notice may be included in a Conversion
Notice) requesting reissuance of this Note upon physical surrender of this Note. The Holder and the Company shall maintain records
showing the Principal, Interest and Late Charges converted and/or paid (as the case may be) and the dates of such conversions,
and/or payments (as the case may be) or shall use such other method, reasonably satisfactory to the Holder and the Company, so
as not to require physical surrender of this Note upon conversion. If the Company does not update the Register to record such
Principal, Interest and Late Charges converted and/or paid (as the case may be) and the dates of such conversions, and/or payments
(as the case may be) within two (2) Business Days of such occurrence, then the Register shall be automatically deemed updated
to reflect such occurrence.


 


(iv)       Pro
Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from more than one holder of Notes for
the same Conversion Date and the Company can convert some, but not all, of such portions of the Notes submitted for conversion,
the Company, subject to Section 3(d), shall convert from each holder of Notes electing to have Notes converted on such date a
pro rata amount of such holder’s portion of its Notes submitted for conversion based on the principal amount of Notes submitted
for conversion on such date by such holder relative to the aggregate principal amount of all Notes submitted for conversion on
such date. In the event of a dispute as to the number of shares of Common Stock issuable to the Holder in connection with a conversion
of this Note, the Company shall issue to the Holder the number of shares of Common Stock not in dispute and resolve such dispute
in accordance with Section 25.


 




    	5



     


    

 


(d)       Limitations
on Conversions.


 


(i)       Beneficial
Ownership. The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right
to convert any portion of this Note pursuant to the terms and conditions of this Note and any such conversion shall be null and
void and treated as if never made, to the extent that after giving effect to such conversion, the Holder together with the other
Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the
shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence,
the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include
the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common
Stock issuable upon conversion of this Note with respect to which the determination of such sentence is being made, but shall
exclude shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted portion of this Note
beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or
nonconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible
preferred stock or warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion
or exercise analogous to the limitation contained in this Section 3(d)(i). For purposes of this Section 3(d)(i), beneficial ownership
shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding shares
of Common Stock the Holder may acquire upon the conversion of this Note without exceeding the Maximum Percentage, the Holder may
rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on
Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be,
(y) a more recent public announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if
any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”).
If the Company receives a Conversion Notice from the Holder at a time when the actual number of outstanding shares of Common Stock
is less than the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of shares of
Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause the Holder’s beneficial
ownership, as determined pursuant to this Section 3(d)(i), to exceed the Maximum Percentage, the Holder must notify the Company
of a reduced number of shares of Common Stock to be purchased pursuant to such Conversion Notice. For any reason at any time,
upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or
by electronic mail to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding
shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including
this Note, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was
reported. In the event that the issuance of shares of Common Stock to the Holder upon conversion of this Note results in the Holder
and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the
number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued
by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage
(the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall
not have the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, the Holder may
from time to time increase (with such increase not effective until the sixty-first (61st) day after delivery of such
notice) or decrease the Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided
that (i) any such increase in the Maximum Percentage will not be effective until the sixty-first (61st) day after such
notice is delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution
Parties and not to any other holder of Notes that is not an Attribution Party of the Holder. For purposes of clarity, the shares
of Common Stock issuable pursuant to the terms of this Note in excess of the Maximum Percentage shall not be deemed to be beneficially
owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability
to convert this Note pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph
with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented
in a manner otherwise than in strict conformity with the terms of this Section 3(d)(i) to the extent necessary to correct this
paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation
contained in this Section 3(d)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation.
The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Note.


 




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(ii)       Principal
Market Regulation. The Company shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant
to the terms of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common
Stock which the Company may issue upon conversion of the Notes or otherwise pursuant to the terms of this Note without breaching
the Company’s obligations under the rules or regulations of the Principal Market (the number of shares which may be issued
without violating such rules and regulations, including rules related to the aggregate of offerings under NASDAQ Listing Rule
5635(d), the “Exchange Cap”), except that such limitation shall not apply in the event that the Company (A)
obtains the approval of its stockholders as required by the applicable rules of the Principal Market for issuances of shares of
Common Stock upon conversion of the Notes or otherwise pursuant to the terms of this Note in excess of such amount or (B) obtains
a written opinion from outside counsel to the Company that such approval is not required, which opinion shall be reasonably satisfactory
to the Holder. Until such approval or such written opinion is obtained, no Buyer shall be issued in the aggregate, upon conversion
of any Notes or otherwise pursuant to the terms of this Note, shares of Common Stock in an amount greater than the product of
(i) the Exchange Cap multiplied by (ii) the quotient of (A) the aggregate original principal amount of Notes issued to such Buyer
pursuant to the Securities Purchase Agreement on the Closing Date (as defined in the Securities Purchase Agreement) divided by
(B) the aggregate original principal amount of all Notes issued to the Buyers pursuant to the Securities Purchase Agreement on
the Closing Date (with respect to each Buyer, the “Exchange Cap Allocation”). In the event that any Buyer shall
sell or otherwise transfer any of such Buyer’s Notes, the transferee shall be allocated a pro rata portion of such Buyer’s
Exchange Cap Allocation with respect to such portion of such Notes so transferred, and the restrictions of the prior sentence
shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so allocated to such transferee. Upon
conversion in full of a holder’s Notes, the difference (if any) between such holder’s Exchange Cap Allocation and
the number of shares of Common Stock actually issued to such holder upon such holder’s conversion in full of such holder’s
Notes shall be allocated to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion
to the shares of Common Stock underlying the Notes then held by each such holder. At any time after the date hereof, in the event
that the Company is prohibited from issuing shares of Common Stock pursuant to this Section 3(d)(ii) (the “Exchange Cap
Shares”), the Company shall pay cash in exchange for the cancellation of such shares of Common Stock at a price equal
to the sum of (i) the product of (x) such number of Exchange Cap Shares and (y) the greatest Closing Sale Price of the Common
Stock on any Trading Day during the period commencing on the date the Holder delivers the applicable Conversion Notice with respect
to such Exchange Cap Shares to the Company and ending on the date of such issuance and payment under this Section 3(d)(ii) and
(ii) to the extent of any Buy-In related thereto, any Buy-In Payment Amount, any brokerage commissions and other out-of-pocket
expenses, if any, of the Holder incurred in connection therewith (collectively, the “Exchange Cap Share Cancellation
Amount”).


 


(e)       Right
of Alternate Conversion Upon an Event of Default.


 


(i)       General.
Subject to Section 3(d), at any time during an Event of Default Redemption Right Period (as defined below) with respect to an
Alternate Conversion Event of Default (regardless of whether such Event of Default has been cured or if the Holder has delivered
an Event of Default Redemption Notice to the Company), the Holder may, at the Holder’s option, convert (each, an “Alternate
Conversion”, and the date of such Alternate Conversion, each, an “Alternate Conversion Date”) all,
or any part of, the Conversion Amount (such portion of the Conversion Amount subject to such Alternate Conversion, the “Alternate
Conversion Amount”) into shares of Common Stock at the Alternate Conversion Price.


 


(ii)       Mechanics
of Alternate Conversion. On any Alternate Conversion Date, the Holder may voluntarily convert any Alternate Conversion Amount
pursuant to Section 3(c) (with “Alternate Conversion Price” replacing “Conversion Price” for all purposes
hereunder with respect to such Alternate Conversion and with “Redemption Premium of the Conversion Amount” replacing
“Conversion Amount” in clause (x) of the definition of Conversion Rate above with respect to such Alternate Conversion)
by designating in the Conversion Notice delivered pursuant to this Section 3(e) of this Note that the Holder is electing to use
the Alternate Conversion Price for such conversion; provided that in the event of the Conversion Floor Price Condition, on the
applicable Alternate Conversion Date the Company shall also deliver to the Holder the applicable Alternate Conversion Floor Amount.
Notwithstanding anything to the contrary in this Section 3(e), but subject to Section 3(d), until the Company delivers shares
of Common Stock representing the applicable Alternate Conversion Amount to the Holder, such Alternate Conversion Amount may be
converted by the Holder into shares of Common Stock pursuant to Section 3(c) without regard to this Section 3(e).


 




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4.       RIGHTS
UPON EVENT OF DEFAULT.


 


(a)       Event
of Default. Each of the following events shall constitute an “Event of Default” and each of the events
in clauses (viii), (ix) and (x) shall constitute a “Bankruptcy Event of Default”:


 


(i)       the
suspension from trading or the failure of the Common Stock to be trading or listed (as applicable) on an Eligible Market for a
period of ten (10) consecutive Trading Days;


 


(ii)       at
any time from and after November 3, 2020 (excluding days during an Allowable Grace Period), the Company fails to have an
effective shelf registration statement, which, as of such time of determination, has an available dollar offering amount of securities
then issuable by the Company thereunder (as reduced by any limitations on any such issuances by any law, rule or regulations applicable
thereto, whether pursuant to the 1933 Act, the Principal Market or otherwise, including, without limitation, the “baby shelf
rules” set forth in Instruction I.B.6(a) to Form S-3 of the 1933 Act) (the “Available
Shelf Capacity”) of no less than 125% of the aggregate principal, interest and other amounts outstanding
under the April 2020 Notes and/or the Notes, as applicable, as of such time of determination;


 


(iii)       the
Company’s (A) failure to cure a Conversion Failure by delivery of the required number of shares of Common Stock within five
(5) Trading Days after the applicable Conversion Date or (B) notice, written or oral, to any holder of the Notes, including, without
limitation, by way of public announcement or through any of its agents, at any time, of its intention not to comply, as required,
with a request for conversion of any Notes into shares of Common Stock that is requested in accordance with the provisions of
the Notes, other than pursuant to Section 3(d);


 


(iv)       except
to the extent the Company is in compliance with Section 9(b) below, at any time following the tenth (10th) consecutive
day that the Holder’s Authorized Share Allocation (as defined in Section 9(a) below) is less than the number of shares of
Common Stock that the Holder would be entitled to receive upon a conversion of the full Conversion Amount of this Note (without
regard to any limitations on conversion set forth in Section 3(d) or otherwise);


 


(v)       the
Company’s failure to pay to the Holder any amount of Principal, Interest, Late Charges or other amounts when and as due
under this Note (including, without limitation, the Company’s failure to pay any redemption payments or amounts hereunder)
or any other Transaction Document (as defined in the Securities Purchase Agreement) or any other agreement, document, certificate
or other instrument delivered in connection with the transactions contemplated hereby and thereby, but only if such failure remains
uncured for a period of at least two (2) Trading Days;





 




    	8



     


    

 


(vi)       the
Company fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the Holder upon conversion
of any Securities (as defined in the Securities Purchase Agreement) acquired by the Holder under the Securities Purchase Agreement
(including this Note) as and when required by such Securities or the Securities Purchase Agreement, unless otherwise then prohibited
by applicable federal securities laws, and any such failure remains uncured for at least ten (10) days;


 


(vii)       the
occurrence of any default (after lapse of any applicable cure periods) under, redemption of or acceleration prior to maturity
of at least an aggregate of $150,000 of Indebtedness (as defined in the Securities Purchase Agreement) of the Company or any of
its Subsidiaries, other than with respect to any Other Notes or with respect to any redemption of the April 2020 Note (as defined
in the Securities Purchase Agreement) or any 2019 Notes (as defined in the Securities Purchase Agreement);


 


(viii)       bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or
against the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not be
dismissed within thirty (30) days of their initiation;


 


(ix)       the
commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company
or any Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign
law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any substantial part
of its property, or the making by it of an assignment for the benefit of creditors, or the execution of a composition of debts,
or the occurrence of any other similar federal, state or foreign proceeding, or the admission by it in writing of its inability
to pay its debts generally as they become due, the taking of corporate action by the Company or any Subsidiary in furtherance
of any such action or the taking of any action by any Person to commence a Uniform Commercial Code foreclosure sale or any other
similar action under federal, state or foreign law;


 


(x)       the
entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of a voluntary
or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other
similar law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or
insolvent, or approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order,
judgment or other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree, order, judgment or other similar document or any such other decree, order,
judgment or other similar document unstayed and in effect for a period of thirty (30) consecutive days;


 




    	9



     


    

 


(xi)       a
final judgment or judgments for the payment of money aggregating in excess of $150,000 are rendered against the Company and/or
any of its Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled
or stayed pending appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however,
any judgment which is covered by insurance or an indemnity from a credit worthy party shall not be included in calculating the
$150,000 amount set forth above so long as the Company provides the Holder a written statement from such insurer or indemnity
provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment is covered
by insurance or an indemnity and the Company or such Subsidiary (as the case may be) will receive the proceeds of such insurance
or indemnity within thirty (30) days of the issuance of such judgment;


 


(xii)       the
Company and/or any Subsidiary, individually or in the aggregate, either (i) fails to pay, when due, or within any applicable grace
period, any payment with respect to any Indebtedness in excess of $150,000 due to any third party (other than, with respect to
unsecured Indebtedness only, payments contested by the Company and/or such Subsidiary (as the case may be) in good faith by proper
proceedings and with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or
is otherwise in breach or violation of any agreement for monies owed or owing in an amount in excess of $150,000, which failure
to pay, breach or violation permits the other party thereto to declare an event of default or otherwise accelerate amounts due
thereunder, or (ii) suffer to exist any other circumstance or event that would, with or without the passage of time or the giving
of notice, result in a default or event of default under any agreement binding the Company or any Subsidiary, which default or
event of default would or is likely to have a material adverse effect on the business, assets, operations (including results thereof),
liabilities, properties, condition (including financial condition) or prospects of the Company or any of its Subsidiaries, individually
or in the aggregate;


 


(xiii)       other
than as specifically set forth in another clause of this Section 4(a), the Company or any Subsidiary breaches any representation
or warranty, in any material respect (other than representations or warranties subject to material adverse effect or materiality,
which may not be breached in any respect) or any covenant or other term or condition of any Transaction Document, except, in the
case of a breach of a covenant or other term or condition that is curable, only if such breach remains uncured for a period of
five (5) consecutive Trading Days;


 




    	10



     


    

 


(xiv)       the
occurrence of four (4) or more false or inaccurate certification (including a false or inaccurate deemed certification) by the
Company as to whether any Event of Default has occurred;


 


(xv)       any
breach or failure in any respect by the Company or any Subsidiary to comply with any provision of clauses (a) to (g), (n), or
(o) to (r) of Section 15 of this Note, but only with respect to clauses (e) to (g), (n) or (o) to (r) of Section 15 of this Note
if such breach remains uncured for a period of five (5) consecutive days;


 


(xvi)       any
Material Adverse Effect (as defined in the Securities Purchase Agreement) occurs (other than any material adverse development
or material adverse change with respect to any products of the Company other than the CarpX or Esocheck products);


 


(xvii)       any
provision of any Transaction Document (including, without limitation, the Security Documents and the Guaranties) 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 parties thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall
be commenced by the Company or any Subsidiary or any governmental authority having jurisdiction over any of them, seeking to establish
the invalidity or unenforceability thereof, or the Company or any Subsidiary shall deny in writing that it has any liability or
obligation purported to be created under any Transaction Document (including, without limitation, the Security Documents and the
Guaranties);


 


(xviii)       any
Security Document shall for any reason fail or cease to create a separate valid and perfected and, except to the extent permitted
by the terms hereof or thereof, first priority Lien (as defined in the Securities Purchase Agreement) on the Collateral (as defined
in the Security Documents) in favor of the Collateral Agent (as defined in the Securities Purchase Agreement) or any material
provision of any Security Document shall at any time for any reason cease to be valid and binding on or enforceable against the
Company or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced
by the Company or any governmental authority having jurisdiction over the Company, seeking to establish the invalidity or unenforceability
thereof;


 


(xix)       any
material damage to, or loss, theft or destruction of, any Collateral, whether or not insured, or any strike, lockout, labor dispute,
embargo, condemnation, act of God or public enemy, or other casualty which causes, for more than fifteen (15) consecutive days,
the cessation or substantial curtailment of revenue producing activities at any facility of the Company or any Subsidiary, if
any such event or circumstance has had, or is reasonably likely to have a Material Adverse Effect;


 


(xx)       if
both (x) Lishan Aklog ceases to be the chief executive officer of the Company and (y) Dennis McGrath ceases to be the chief financial
officer or chief executive officer of the Company; or


 




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(xxi)       any
Event of Default (as defined in the Other Notes) occurs with respect to any Other Notes, the April 2020 Note or any 2019 Notes.


 


(b)       Notice
of an Event of Default; Redemption Right. Upon the occurrence of an Event of Default with respect to this Note or any Other
Note, the Company shall within one (1) Business Day deliver written notice thereof via facsimile or electronic mail and overnight
courier (with next day delivery specified) (an “Event of Default Notice”) to the Holder. At any time after
the earlier of the Holder’s receipt of an Event of Default Notice and the Holder becoming aware of the occurrence of an
Event of Default (such earlier date, the “Event of Default Right Commencement Date”) and ending (such ending
date, the “Event of Default Right Expiration Date”, and each such period, an “Event of Default Redemption
Right Period”) on the twentieth (20th) Trading Day after the later of (x) the date such Event of Default
is cured and (y) the Holder’s receipt of an Event of Default Notice that includes (I) a reasonable description of the applicable
Event of Default, (II) a certification as to whether, in the opinion of the Company, such Event of Default is capable of being
cured and, if applicable, a reasonable description of any existing plans of the Company to cure such Event of Default and (III)
a certification as to the date the Event of Default occurred and, if cured on or prior to the date of such Event of Default Notice,
the applicable Event of Default Right Expiration Date, the Holder may require the Company to redeem (regardless of whether such
Event of Default has been cured on or prior to the Event of Default Right Expiration Date) all or any portion of this Note by
delivering written notice thereof (the “Event of Default Redemption Notice”) to the Company, which Event of
Default Redemption Notice shall indicate the portion of this Note the Holder is electing to redeem. Each portion of this Note
subject to redemption by the Company pursuant to this Section 4(b) shall be redeemed by the Company at a price equal to the greater
of (i) the product of (A) the Conversion Amount to be redeemed multiplied by (B) the Redemption Premium and (ii) the product of
(X) the Conversion Rate with respect to the Conversion Amount in effect at such time as the Holder delivers an Event of Default
Redemption Notice multiplied by (Y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing
on the date immediately preceding such Event of Default and ending on the date the Company makes the entire payment required to
be made under this Section 4(b) (the “Event of Default Redemption Price”). Redemptions required by this Section
4(b) shall be made in accordance with the provisions of Section 10. To the extent redemptions required by this Section 4(b) are
deemed or determined by a court of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall
be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this Section 4(b), but subject to Section 3(d),
until the Event of Default Redemption Price (together with any Late Charges thereon) is paid in full, the Conversion Amount submitted
for redemption under this Section 4(b) (together with any Late Charges thereon) may be converted, in whole or in part, by the
Holder into Common Stock pursuant to the terms of this Note. In the event of the Company’s redemption of any portion of
this Note under this Section 4(b), the Holder’s damages would be uncertain and difficult to estimate because of the parties’
inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity
for the Holder. Accordingly, any redemption premium due under this Section 4(b) is intended by the parties to be, and shall be
deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a penalty. Any redemption
upon an Event of Default shall not constitute an election of remedies by the Holder, and all other rights and remedies of the
Holder shall be preserved.


 




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(c)       Mandatory
Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, and notwithstanding any conversion
that is then required or in process, upon any Bankruptcy Event of Default, whether occurring prior to or following the Maturity
Date, the Company shall immediately pay to the Holder an amount in cash representing (i) all outstanding Principal, accrued and
unpaid Interest and accrued and unpaid Late Charges on such Principal and Interest, multiplied by (ii) the Redemption Premium,
in addition to any and all other amounts due hereunder, without the requirement for any notice or demand or other action by the
Holder or any other person or entity, provided that the Holder may, in its sole discretion, waive such right to receive payment
upon a Bankruptcy Event of Default, in whole or in part, and any such waiver shall not affect any other rights of the Holder hereunder,
including any other rights in respect of such Bankruptcy Event of Default, any right to conversion, and any right to payment of
the Event of Default Redemption Price or any other Redemption Price, as applicable.


 


5.       RIGHTS
UPON FUNDAMENTAL TRANSACTION.


 


(a)       Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless (i) the Successor Entity assumes in writing all
of the obligations of the Company under this Note and the other Transaction Documents in accordance with the provisions of this
Section 5(a) pursuant to written agreements in form and substance satisfactory to the Holder and approved by the Holder prior
to such Fundamental Transaction, including agreements to deliver to each holder of Notes in exchange for such Notes a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the Notes, including,
without limitation, having a principal amount and interest rate equal to the principal amounts then outstanding and the interest
rates of the Notes held by such holder, having similar conversion rights as the Notes and having similar ranking and security
to the Notes, and satisfactory to the Holder and (ii) the Successor Entity (including its Parent Entity) is a publicly traded
corporation whose common stock is quoted on or listed for trading on an Eligible Market. Upon the occurrence of any Fundamental
Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental
Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall refer
instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Note and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein. Upon consummation of a Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation
that there shall be issued upon conversion or redemption of this Note at any time after the consummation of such Fundamental Transaction,
in lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under
Sections 6 and 16, which shall continue to be receivable thereafter)) issuable upon the conversion or redemption of the Notes
prior to such Fundamental Transaction, such shares of the publicly traded common stock (or their equivalent) of the Successor
Entity (including its Parent Entity) which the Holder would have been entitled to receive upon the happening of such Fundamental
Transaction had this Note been converted immediately prior to such Fundamental Transaction (without regard to any limitations
on the conversion of this Note), as adjusted in accordance with the provisions of this Note. Notwithstanding the foregoing, the
Required Holders may elect, at their sole option, by delivery of written notice to the Company to waive this Section 5(a) to permit
the Fundamental Transaction without the assumption of this Note. The provisions of this Section 5 shall apply similarly and equally
to successive Fundamental Transactions and shall be applied without regard to any limitations on the conversion of this Note.


 




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(b)       Notice
of a Change of Control; Redemption Right. No sooner than twenty (20) Trading Days nor later than ten (10) Trading Days prior
to the consummation of a Change of Control (the “Change of Control Date”), but not prior to the public announcement
of such Change of Control, the Company shall deliver written notice thereof via facsimile or electronic mail and overnight courier
to the Holder (a “Change of Control Notice”). At any time during the period beginning after the Holder’s
receipt of a Change of Control Notice or the Holder becoming aware of a Change of Control if a Change of Control Notice is not
delivered to the Holder in accordance with the immediately preceding sentence (as applicable) and ending on twenty (20) Trading
Days after the later of (A) the date of consummation of such Change of Control or (B) the date of receipt of such Change of Control
Notice or (C) the date of the announcement of such Change of Control, the Holder may require the Company to redeem all or any
portion of this Note by delivering written notice thereof (“Change of Control Redemption Notice”) to the Company,
which Change of Control Redemption Notice shall indicate the Conversion Amount the Holder is electing to redeem. The portion of
this Note subject to redemption pursuant to this Section 5 shall be redeemed by the Company in cash at a price equal to the greatest
of (i) the product of (w) the Change of Control Redemption Premium multiplied by (y) the Conversion Amount being redeemed, (ii)
the product of (x) the Change of Control Redemption Premium multiplied by (y) the product of (A) the Conversion Amount being redeemed
multiplied by (B) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during
the period beginning on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of
Control and (2) the public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control
Redemption Notice by (II) the Conversion Price then in effect and (iii) the product of (y) the Change of Control Redemption Premium
multiplied by (z) the product of (A) the Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate
cash consideration and the aggregate cash value of any non-cash consideration per share of Common Stock to be paid to the holders
of the shares of Common Stock upon consummation of such Change of Control (any such non-cash consideration constituting publicly-traded
securities shall be valued at the highest of the Closing Sale Price of such securities as of the Trading Day immediately prior
to the consummation of such Change of Control, the Closing Sale Price of such securities on the Trading Day immediately following
the public announcement of such proposed Change of Control and the Closing Sale Price of such securities on the Trading Day immediately
prior to the public announcement of such proposed Change of Control) divided by (II) the Conversion Price then in effect (the
“Change of Control Redemption Price”). Redemptions required by this Section 5 shall be made in accordance with
the provisions of Section 10 and shall have priority to payments to stockholders in connection with such Change of Control. To
the extent redemptions required by this Section 5(b) are deemed or determined by a court of competent jurisdiction to be prepayments
of this Note by the Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary
in this Section 5, but subject to Section 3(d), until the Change of Control Redemption Price (together with any Late Charges thereon)
is paid in full, the Conversion Amount submitted for redemption under this Section 5(b) (together with any Late Charges thereon)
may be converted, in whole or in part, by the Holder into Common Stock pursuant to Section 3. In the event of the Company’s
redemption of any portion of this Note under this Section 5(b), the Holder’s damages would be uncertain and difficult to
estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability of a
suitable substitute investment opportunity for the Holder. Accordingly, any redemption premium due under this Section 5(b) is
intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment
opportunity and not as a penalty.


 




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6.       RIGHTS
UPON ISSUANCE OF PURCHASE RIGHTS AND OTHER CORPORATE EVENTS.


 


(a)       Purchase
Rights. In addition to any adjustments pursuant to Section 7 and 16 below, if at any time the Company grants, issues or sells
any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to all or substantially
all of the record holders of any class of Common Stock (the “Purchase Rights”), then the Holder will be entitled
to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired
if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without taking into
account any limitations or restrictions on the convertibility of this Note and assuming for such purpose that the Note was converted
at the Alternate Conversion Price as of the applicable record date) immediately prior to the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of
shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however,
that to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder and the
other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase
Right to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock
as a result of such Purchase Right (and beneficial ownership) to the extent of any such excess) and such Purchase Right to such
extent shall be held in abeyance up to ninety (90) Trading Days (and, if such Purchase Right has an expiration date, maturity
date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable) for the benefit
of the Holder until the applicable expiration date, maturity date or similar time (as extended pursuant to the foregoing), until
such time or times during such extended period, if any, as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right
granted, issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance (and, if
such Purchase Right has an expiration date, maturity date or other similar provision, such term shall be extended by such number
of days held in abeyance, if applicable)) to the same extent as if there had been no such limitation). The Holder shall be deemed
to have waived the right to receive any such Purchase Rights that remain held in abeyance at the end of such abeyance period if
not granted prior to such time.


 


(b)       Other
Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any
Fundamental Transaction pursuant to which holders of shares of Common Stock are entitled to receive securities or other assets
with respect to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make appropriate
provision to ensure that the Holder will thereafter have the right to receive upon a conversion of this Note, at the Holder’s
option (i) in addition to the shares of Common Stock receivable upon such conversion, such securities or other assets to which
the Holder would have been entitled with respect to such shares of Common Stock had such shares of Common Stock been held by the
Holder upon the consummation of such Corporate Event (without taking into account any limitations or restrictions on the convertibility
of this Note) or (ii) in lieu of the shares of Common Stock otherwise receivable upon such conversion, such securities or other
assets received by the holders of shares of Common Stock in connection with the consummation of such Corporate Event in such amounts
as the Holder would have been entitled to receive had this Note initially been issued with conversion rights for the form of such
consideration (as opposed to shares of Common Stock) at a conversion rate for such consideration commensurate with the Conversion
Rate. Provision made pursuant to the preceding sentence shall be in a form and substance satisfactory to the Holder. The provisions
of this Section 6 shall apply similarly and equally to successive Corporate Events and shall be applied without regard to any
limitations on the conversion or redemption of this Note.


 


7.       RIGHTS
UPON ISSUANCE OF OTHER SECURITIES.


 


(a)       Adjustment
of Conversion Price upon Subdivision or Combination of Common Stock. Without limiting any provision of Section 4(c), if the
Company at any time on or after the Subscription Date subdivides (by any stock split, stock dividend, stock combination, recapitalization
or other similar transaction) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the
Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting any provision
of Section 6 or Section 16, if the Company at any time on or after the Subscription Date combines (by any stock split, stock dividend,
stock combination, recapitalization or other similar transaction) one or more classes of its outstanding shares of Common Stock
into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately
increased. Any adjustment pursuant to this Section 7(a) shall become effective immediately after the effective date of such subdivision
or combination. If any event requiring an adjustment under this Section 7(a) occurs during the period that a Conversion Price
is calculated hereunder, then the calculation of such Conversion Price shall be adjusted appropriately to reflect such event.


 




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(b)       Holder’s
Right of Adjusted Conversion Price. In addition to and not in limitation of the other provisions of this Section 7 or in the
Securities Purchase Agreement, if the Company in any manner issues or sells or enters into any agreement to issue or sell, any
Common Stock, Options or Convertible Securities (any such securities, “Variable Price Securities”), after the
Subscription Date that are issuable pursuant to such agreement or convertible into or exchangeable or exercisable for shares of
Common Stock at a price which varies or may vary with the market price of the shares of Common Stock, including by way of one
or more reset(s) to a fixed price, but exclusive of such formulations reflecting customary anti-dilution provisions (such as share
splits, share combinations, share dividends and similar transactions) (each of the formulations for such variable price being
herein referred to as, the “Variable Price”), the Company shall provide written notice thereof via facsimile
or electronic mail and overnight courier to the Holder on the date of such agreement and the issuance of such Convertible Securities
or Options. From and after the date the Company enters into such agreement or issues any such Variable Price Securities, the Holder
shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price for the Conversion Price
upon conversion of this Note by designating in the Conversion Notice delivered upon any conversion of this Note that solely for
purposes of such conversion the Holder is relying on the Variable Price rather than the Conversion Price then in effect. The Holder’s
election to rely on a Variable Price for a particular conversion of this Note shall not obligate the Holder to rely on a Variable
Price for any future conversion of this Note.


 


(c)       Calculations.
All calculations under this Section 7 shall be made by rounding to the nearest cent or the nearest 1/100th of a share,
as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or
for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.


 


(d)       Voluntary
Adjustment by Company. Subject to the rules and regulations of the Principal Market, the Company may at any time during the
term of this Note, with the prior written consent of the Required Holders (as defined in the Securities Purchase Agreement), reduce
the then current Conversion Price of each of the Notes to any amount and for any period of time deemed appropriate by the board
of directors of the Company.


 


8.       NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation (as defined
in the Securities Purchase Agreement), Bylaws (as defined in the Securities Purchase Agreement) or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith
carry out all of the provisions of this Note and take all action as may be required to protect the rights of the Holder of this
Note. Without limiting the generality of the foregoing or any other provision of this Note or the other Transaction Documents,
the Company (a) shall not increase the par value of any shares of Common Stock receivable upon conversion of this Note above the
Conversion Price then in effect, and (b) shall take all such actions as may be necessary or appropriate in order that the Company
may validly and legally issue fully paid and nonassessable shares of Common Stock upon the conversion of this Note.


 




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9.       RESERVATION
OF AUTHORIZED SHARES.


 


(a)       Reservation.
So long as any Notes remain outstanding, the Company shall at all times reserve the Required Reserve Amount (as defined in the
Securities Purchase Agreement) The Required Reserve Amount (including, without limitation, each increase in the number of shares
so reserved) shall be allocated pro rata among the holders of the Notes based on the original principal amount of the Notes held
by each holder on the Closing Date or increase in the number of reserved shares, as the case may be (the “Authorized
Share Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s Notes, each
transferee shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any shares of Common Stock
reserved and allocated to any Person which ceases to hold any Notes shall be allocated to the remaining holders of Notes, pro
rata based on the principal amount of the Notes then held by such holders.


 


(b)       Insufficient
Authorized Shares. If, notwithstanding Section 9(a), and not in limitation thereof, at any time while any of the Notes remain
outstanding the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation
to reserve for issuance upon conversion of the Notes at least a number of shares of Common Stock equal to the Required Reserve
Amount (an “Authorized Share Failure”), then the Company shall immediately use its reasonable best efforts
to take all action necessary to increase the Company’s authorized shares of Common Stock to an amount sufficient to allow
the Company to reserve the Required Reserve Amount for the Notes then outstanding. Without limiting the generality of the foregoing
sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure, but in no event later than sixty
(60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its stockholders for the
approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting, the Company shall
provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’ approval of
such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders that they
approve such proposal (or, if a majority of the voting power then in effect of the capital stock of the Company consents to such
increase, in lieu of such proxy statement, deliver to the stockholders of the Company an information statement that has been filed
with (and either approved by or not subject to comments from) the SEC with respect thereto). In the event that the Company is
prohibited from issuing shares of Common Stock pursuant to the terms of this Note due to the failure by the Company to have sufficient
shares of Common Stock available out of the authorized but unissued shares of Common Stock (such unavailable number of shares
of Common Stock, the “Authorized Failure Shares”), in lieu of delivering such Authorized Failure Shares to
the Holder, the Company shall pay cash in exchange for the redemption of such portion of the Conversion Amount convertible into
such Authorized Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorized Failure Shares
and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder
delivers the applicable Conversion Notice with respect to such Authorized Failure Shares to the Company and ending on the date
of such issuance and payment under this Section 9(a); and (ii) to the extent the Holder purchases (in an open market transaction
or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of Authorized Failure Shares, any brokerage
commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith. Nothing contained in Section
9(a) or this Section 9(b) shall limit any obligations of the Company under any provision of the Securities Purchase Agreement.


 




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10.       SUBSEQUENT
PLACEMENT OPTIONAL REDEMPTION


 


(a)       General.
At any time from and after the earlier of (x) the date the Holder becomes aware of the occurrence of a Subsequent Placement (as
defined in the Securities Purchase Agreement) (the “Holder Notice Date”) and (y) the time of consummation of
a Subsequent Placement (in each case, other than with respect to (I) Excluded Securities (as defined in the Securities Purchase
Agreement) and (II) the shares of Common Stock issuable upon conversion of the Notes) (each, an “Eligible Subsequent
Placement”), the Holder shall have the right, in its sole discretion, to require that the Company redeem (each an “Subsequent
Placement Optional Redemption”) all, or any portion, of the Conversion Amount under this Note not in excess of (together
with any Subsequent Placement Optional Redemption Amount (as defined in the applicable other Note of the Holder) of any other
Notes of the Holder) the Holder’s Holder Pro Rata Amount of 100% of the gross proceeds (less (A) any reasonable placement
agent, underwriter and/or legal fees and expenses, and (B) any Subsequent Placement Optional Redemption Amount (as defined in
the 2019 Notes) and any Subsequent Placement Optional Redemption Amount (as defined in the April 2020 Note), in the aggregate,
redeemed by the Company at the election of the applicable holders of such April 2020 Note and/or 2019 Notes (as applicable) in
connection with such Eligible Subsequent Placement) of such Eligible Subsequent Placement (the “Eligible Subsequent Placement
Optional Redemption Amount”) by delivering written notice thereof (an “Subsequent Placement Optional Redemption
Notice”) to the Company. Notwithstanding the foregoing, if the Holder is participating in an Eligible Subsequent Placement,
upon the written request of the Holder, the Company shall apply all, or any part, as set forth in such written request, of any
amounts that would otherwise be payable to the Holder in such Subsequent Placement Optional Redemption, on a dollar-for-dollar
basis, against the purchase price of the securities to be purchased by the Holder in such Eligible Subsequent Placement.


 


(b)       Mechanics.
The Subsequent Placement Optional Redemption Notice shall indicate that all, or such applicable portion, as set forth in the applicable
Subsequent Placement Optional Redemption Notice, of the Eligible Subsequent Placement Optional Redemption Amount the Holder is
electing to have redeemed (the “Subsequent Placement Optional Redemption Amount”) and the date of such Subsequent
Placement Optional Redemption (the “Subsequent Placement Optional Redemption Date”), which shall be the later
of (x) the fifth (5th) Trading Day after the date of the applicable Subsequent Placement Optional Redemption Notice
and (y) the date of the consummation of such Eligible Subsequent Placement. The portion of this Note subject to redemption pursuant
to this Section 10 shall be redeemed by the Company in cash at a price equal to 115% of the Subsequent Placement Optional Redemption
Amount (the “Subsequent Placement Optional Redemption Price”). Redemptions required by this Section 10 shall
be made in accordance with the provisions of Section 13. Notwithstanding anything to the contrary in this Section 10, but subject
to Section 3(d), until the Holder receives the Subsequent Placement Optional Redemption Price, the Subsequent Placement Optional
Redemption Amount may be converted, in whole or in part, by the Holder into Common Stock pursuant to Section 3, and any such conversion
shall reduce the Subsequent Placement Optional Redemption Amount in the manner set forth by the Holder in the applicable Conversion
Notice.


 




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11.       HOLDER
OPTIONAL REDEMPTION. At any time from and after October 30, 2020, the Holder shall have the right, in its sole discretion,
to require that the Company redeem (each an “Holder Optional Redemption”) all, or any portion, of the Conversion
Amount under this Note by delivering written notice thereof (an “Holder Optional Redemption Notice”) to the
Company. The Holder Optional Redemption Notice shall indicate that all, or such applicable portion, as set forth in the applicable
Holder Optional Redemption Notice, of the Conversion Amount of this Note that the Holder is electing to have redeemed (the “Holder
Optional Redemption Amount”) and the date of such Holder Optional Redemption (the “Holder Optional Redemption
Date”), which shall be the fifth (5th) Trading Day after the date of the applicable Holder Optional Redemption
Notice (or such later date as the Holder shall specify in such Holder Optional Redemption Notice). The portion of this Note subject
to redemption pursuant to this Section 11 shall be redeemed by the Company in cash at a price equal to 115% of the Holder Optional
Redemption Amount (the “Holder Optional Redemption Price”). Redemptions required by this Section 11 shall be
made in accordance with the provisions of Section 13. Notwithstanding anything to the contrary in this Section 11, but subject
to Section 3(d), until the Holder receives the Holder Optional Redemption Price, the Holder Optional Redemption Amount may be
converted, in whole or in part, by the Holder into Common Stock pursuant to Section 3, and any such conversion shall reduce the
Holder Optional Redemption Amount in the manner set forth by the Holder in the applicable Conversion Notice.


 


12.       REDEMPTIONS
AT THE COMPANY’S ELECTION.


 


(a)       Company
Optional Redemption. At any time after date hereof the Company shall have the right to redeem all, but not less than all,
of the Conversion Amount then remaining under this Note (the “Company Optional Redemption Amount”) on the Company
Optional Redemption Date (each as defined below) (a “Company Optional Redemption”). The portion of this Note
subject to redemption pursuant to this Section 12(a) shall be redeemed by the Company in cash at a price (the “Company
Optional Redemption Price”) equal to 115% of the greater of (i) the Conversion Amount being redeemed as of the Company
Optional Redemption Date and (ii) the product of (1) the Conversion Rate with respect to the Conversion Amount being redeemed
as of the Company Optional Redemption Date multiplied by (2) the greatest Closing Sale Price of the Common Stock on any Trading
Day during the period commencing on the date immediately preceding such Company Optional Redemption Notice Date and ending on
the Trading Day immediately prior to the date the Company makes the entire payment required to be made under this Section 12(a).
The Company may exercise its right to require redemption under this Section 12(a) by delivering a written notice thereof by facsimile
or electronic mail and overnight courier to all, but not less than all, of the holders of Notes (the “Company Optional
Redemption Notice” and the date all of the holders of Notes received such notice is referred to as the “Company
Optional Redemption Notice Date”). The Company may deliver only one Company Optional Redemption Notice hereunder and
such Company Optional Redemption Notice shall be irrevocable. The Company Optional Redemption Notice shall (x) state the date
on which the Company Optional Redemption shall occur (the “Company Optional Redemption Date”) which date shall
not be less than ten (10) Trading Days nor more than twenty (20) Trading Days following the Company Optional Redemption Notice
Date, and (y) state the aggregate Conversion Amount of the Notes which is being redeemed in such Company Optional Redemption from
the Holder and all of the other holders of the Notes pursuant to this Section 12(a) (and analogous provisions under the Other
Notes) on the Company Optional Redemption Date. Notwithstanding anything herein to the contrary, at any time prior to the date
the Company Optional Redemption Price is paid, in full, the Company Optional Redemption Amount may be converted, in whole or in
part, by the Holder into shares of Common Stock pursuant to Section 3. All Conversion Amounts converted by the Holder after the
Company Optional Redemption Notice Date shall reduce the Company Optional Redemption Amount of this Note required to be redeemed
on the Company Optional Redemption Date. Redemptions made pursuant to this Section 12(a) shall be made in accordance with Section
13. In the event of the Company’s redemption of any portion of this Note under this Section, 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 9 is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual
loss of its investment opportunity and not as a penalty. For the avoidance of doubt, the Company shall have no right to effect
a Company Optional Redemption if any Event of Default has occurred and continuing, but any Event of Default shall have no effect
upon the Holder’s right to convert this Note in its discretion.


 




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(b)       Pro
Rata Redemption Requirement. If the Company elects to cause a Company Optional Redemption of this Note pursuant to Section
12(a), then it must simultaneously take the same action with respect to all of the Other Notes.


 


13.       REDEMPTIONS.


 


(a)       Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder in cash within five (5) Business Days
after the Company’s receipt of the Holder’s Event of Default Redemption Notice. If the Holder has submitted a Change
of Control Redemption Notice in accordance with Section 5(b), the Company shall deliver the applicable Change of Control Redemption
Price to the Holder in cash concurrently with the consummation of such Change of Control if such notice is received prior to the
consummation of such Change of Control and within five (5) Business Days after the Company’s receipt of such notice otherwise.
The Company shall deliver the applicable Holder Optional Redemption Price to the Holder in cash on the applicable Holder Optional
Redemption Date. The Company shall deliver the applicable Subsequent Placement Optional Redemption Price to the Holder in cash
on the applicable Subsequent Placement Optional Redemption Date. The Company shall deliver the applicable Company Optional Redemption
Price to the Holder in cash on the applicable Company Optional Redemption Date. Notwithstanding anything herein to the contrary,
in connection with any redemption hereunder at a time the Holder is entitled to receive a cash payment under any of the other
Transaction Documents, at the option of the Holder delivered in writing to the Company, the applicable Redemption Price hereunder
shall be increased by the amount of such cash payment owed to the Holder under such other Transaction Document and, upon payment
in full or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction
Document. In the event of a redemption of less than all of the Conversion Amount of this Note, the Company shall promptly cause
to be issued and delivered to the Holder a new Note (in accordance with Section 20(d)) representing the outstanding Principal
which has not been redeemed. In the event that the Company does not pay the applicable Redemption Price to the Holder within the
time period required, at any time thereafter and until the Company pays such unpaid Redemption Price in full, the Holder shall
have the option, in lieu of redemption, to require the Company to promptly return to the Holder all or any portion of this Note
representing the Conversion Amount that was submitted for redemption and for which the applicable Redemption Price (together with
any Late Charges thereon) has not been paid. Upon the Company’s receipt of such notice, (x) the applicable Redemption Notice
shall be null and void with respect to such Conversion Amount, (y) the Company shall immediately return this Note, or issue a
new Note (in accordance with Section 20(d)), to the Holder, and in each case the principal amount of this Note or such new Note
(as the case may be) shall be increased by an amount equal to the difference between (1) the applicable Redemption Price (as the
case may be, and as adjusted pursuant to this Section 10, if applicable) minus (2) the Principal portion of the Conversion Amount
submitted for redemption and (z) the Conversion Price of this Note or such new Notes (as the case may be) shall be automatically
adjusted with respect to each conversion effected thereafter by the Holder to the lowest of (A) the Conversion Price as in effect
on the date on which the applicable Redemption Notice is voided, (B) the greater of (x) the Floor Price and (y) 75% of the lowest
Closing Bid Price of the Common Stock during the period beginning on and including the date on which the applicable Redemption
Notice is delivered to the Company and ending on and including the date on which the applicable Redemption Notice is voided and
(C) the greater of (x) the Floor Price and (y) 75% of the quotient of (I) the sum of the five (5) lowest VWAPs of the Common Stock
during the twenty (20) consecutive Trading Day period ending and including the applicable Conversion Date divided by (II) five
(5) (it being understood and agreed that all such determinations shall be appropriately adjusted for any stock dividend, stock
split, stock combination or other similar transaction during such period). The Holder’s delivery of a notice voiding a Redemption
Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make any payments
of Late Charges which have accrued prior to the date of such notice with respect to the Conversion Amount subject to such notice.


 




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(b)       Redemption
by Other Holders. Upon the Company’s receipt of notice from any of the holders of the Other Notes for redemption or
repayment as a result of an event or occurrence substantially similar to the events or occurrences described in Section 4(b) or
Section 5(b) (each, an “Other Redemption Notice”), the Company shall immediately, but no later than one (1)
Business Day of its receipt thereof, forward to the Holder by facsimile or electronic mail a copy of such notice. If the Company
receives a Redemption Notice and one or more Other Redemption Notices, during the seven (7) Business Day period beginning on and
including the date which is two (2) Business Days prior to the Company’s receipt of the Holder’s applicable Redemption
Notice and ending on and including the date which is two (2) Business Days after the Company’s receipt of the Holder’s
applicable Redemption Notice and the Company is unable to redeem all principal, interest and other amounts designated in such
Redemption Notice and such Other Redemption Notices received during such seven (7) Business Day period, then the Company shall
redeem a pro rata amount from each holder of the Notes (including the Holder) based on the principal amount of the Notes submitted
for redemption pursuant to such Redemption Notice and such Other Redemption Notices received by the Company during such seven
(7) Business Day period.


 


14.       VOTING
RIGHTS. The Holder shall have no voting rights as the holder of this Note, except as required by law (including, without limitation,
the Delaware General Corporation Law) and as expressly provided in this Note.


 


15.       COVENANTS.
Until all of the Notes have been converted, redeemed or otherwise satisfied in accordance with their terms:


 


(a)       Rank.
All payments due under this Note (a) shall rank pari passu with all Other Notes and the 2019 Notes and (b) shall be senior
to all other Indebtedness of the Company and its Subsidiaries (other than Permitted Indebtedness secured by Permitted Liens).


 


(b)       Incurrence
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
incur or guarantee, assume or suffer to exist any Indebtedness (other than (i) the Indebtedness evidenced by this Note and the
Other Notes and (ii) other Permitted Indebtedness).


 


(c)       Existence
of Liens. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, allow
or suffer to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets
(including accounts and contract rights) owned by the Company or any of its Subsidiaries (collectively, “Liens”)
other than Permitted Liens.


 


(d)       Restricted
Payments. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, redeem,
defease, repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part,
whether by way of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness
(other than the Notes or any amounts in respect of the Permitted Insurance Indebtedness) whether by way of payment in respect
of principal of (or premium, if any) or interest on, such Indebtedness if at the time such payment is due or is otherwise made
or, after giving effect to such payment, (i) an event constituting an Event of Default has occurred and is continuing or (ii)
an event that with the passage of time and without being cured would constitute an Event of Default has occurred and is continuing.


 


(e)       Restriction
on Redemption and Cash Dividends. Except with respect to the Securities (as defined in the Securities Purchase Agreement),
the Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, redeem, repurchase
or declare or pay any cash dividend or distribution on any of its capital stock (other than to the Company or any Significant
Subsidiary (as defined in the Securities Purchase Agreement)).


 




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(f)       Restriction
on Transfer of Assets. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
sell, lease, license, assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any assets or rights of the
Company or any Subsidiary owned or hereafter acquired whether in a single transaction or a series of related transactions, other
than (i) sales, leases, licenses, assignments, transfers, conveyances and other dispositions of such assets or rights by the Company
and its Subsidiaries of any of the Company’s or any of its Subsidiaries’ products (other than CarpX or Esocheck) to
any third party in a bona fide transaction approved by the board of directors of the Company or otherwise in the ordinary course
of business consistent with its past practice, (ii) sales of inventory and product in the ordinary course of business, (iii) licenses
or transfers of limited samples of products to institutions to facilitate research projects in connection with
sponsored research agreements, (iv) the transfer of equity interests in Lucid Diagnostics pursuant to the Lucid Call Right, (v)
the distribution to the holders of Common Stock (solely, to the extent, such distribution includes the holders of the Notes, the
April 2020 Note and the 2019 Notes, as applicable, in accordance with the terms thereof) of up to 10% of the outstanding common
equity of any Significant Subsidiary and (vi) the transfer of equity interests in any Subsidiary that are issued upon the conversion
of any convertible Permitted Intercompany Indebtedness that is permitted to be incurred hereunder; provided that the Holder shall
have the right, in its sole discretion, to require that the Company redeem all, or any portion, of the Conversion Amount under
this Note not in excess of the Holder’s Holder Pro Rata Amount of the gross proceeds (less any reasonable placement agent,
underwriter and/or legal fees and expenses) of such transfer (the applicable provisions of Section 10 regarding Subsequent Placement
Optional Redemptions shall apply to any such election by the Holder pursuant to this proviso, mutatis mutandis).


 


(g)       Maturity
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
permit any Indebtedness (other than Permitted Indebtedness) of the Company or any of its Subsidiaries to mature or accelerate
prior to the Maturity Date.


 


(h)       Change
in Nature of Business. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly,
engage in any material line of business substantially different from those lines of business conducted by or publicly contemplated
to be conducted by the Company and each of its Subsidiaries on the Subscription Date or any business substantially related or
incidental thereto (it being agreed and understood that the engagement by the Company or any of its Subsidiaries in any business
in respect of a new medical device or biotech product or service is not substantially different than the lines of business conducted
by the Company and its Subsidiaries as of the Subscription Date). The Company shall not, and the Company shall cause each of its
Subsidiaries to not, directly or indirectly, modify its or their corporate structure or purpose.


 




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(i)       Preservation
of Existence, Etc. The Company shall maintain and preserve, and cause each of its Significant Subsidiaries to maintain and
preserve, its existence, rights and privileges, and become or remain, and cause each of its Significant Subsidiaries to become
or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by
it or in which the transaction of its business makes such qualification necessary except in the case that any such failure to
so maintain, preserve or comply has not had, and is not reasonably likely to have, a Material Adverse Effect.


 


(j)       Maintenance
of Properties, Etc. The Company shall maintain and preserve, and cause each of its Significant Subsidiaries to maintain and
preserve, all of its properties which are necessary or useful in the proper conduct of its business in good working order and
condition, ordinary wear and tear excepted, and comply, and cause each of its Significant Subsidiaries to comply, at all times
with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss
or forfeiture thereof or thereunder except in the case that any such failure to so maintain, preserve or comply has not had, and
is not reasonably likely to have, a Material Adverse Effect.


 


(k)       Maintenance
of Intellectual Property. The Company will, and will cause each of its Subsidiaries to, take all action necessary or advisable
to maintain all of Material Intellectual Property Rights (as defined in the Securities Purchase Agreement) of the Company and/or
any of its Subsidiaries that are necessary or material to the conduct of its business in full force and effect.


 


(l)       Maintenance
of Insurance. The Company shall maintain, and cause each of its Subsidiaries to maintain, insurance (including, without limitation,
comprehensive general liability, hazard, rent and business interruption insurance) with respect to its properties (including all
real properties leased or owned by it) and business, in such amounts and covering such risks as is required by any governmental
authority having jurisdiction with respect thereto or as is carried generally in accordance with sound business practice by companies
in similar businesses similarly situated.


 


(m)       Transactions
with Affiliates. The Company shall not, nor shall it permit any of its Subsidiaries to, enter into, renew, extend or be a
party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer
or exchange of property or assets of any kind or the rendering of services of any kind) with any affiliate, except transactions
between or among the Company and its Significant Subsidiaries or other transactions in the ordinary course of business in a manner
and to an extent consistent with past practice and necessary or desirable for the prudent operation of its business, for fair
consideration and on terms no less favorable to it or its Subsidiaries than would be obtainable in a comparable arm’s length
transaction with a Person that is not an affiliate thereof.


 


(n)       Restricted
Issuances. The Company shall not, directly or indirectly, without the prior written consent of the holders of a majority in
aggregate principal amount of the Notes then outstanding, (i) issue any Notes (other than as contemplated by the Securities Purchase
Agreement and the Notes) or (ii) issue any other securities that would cause a breach or default under the Notes.


 




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(o)       New
Significant Subsidiaries. Simultaneously with the acquisition or formation of each New Significant Subsidiary (or upon such
other time as a Subsidiary becomes a Significant Subsidiary), the Company shall cause such New Significant Subsidiary to execute,
and deliver to each holder of Notes, all Security Documents (as defined in the Securities Purchase Agreement) and Guaranties (as
defined in the Securities Purchase Agreement) as requested by the Collateral Agent or the Required Holders, as applicable. The
Company shall also deliver to the Collateral Agent an opinion of counsel to such New Significant Subsidiary that is reasonably
satisfactory to the Collateral Agent and the Required Holders covering such legal matters with respect to such New Significant
Subsidiary becoming a guarantor of the Company’s obligations, executing and delivering the Security Document and the Guaranties
and any other matters that the Collateral Agent or the Required Holders may reasonably request. The Company shall deliver, or
cause the applicable Subsidiary to deliver to the Collateral Agent, each of the physical stock certificates of such New Significant
Subsidiary, along with undated stock powers for each such certificates, executed in blank (or, if any such shares of capital stock
are uncertificated, confirmation and evidence reasonably satisfactory to the Collateral Agent and the Required Holders that the
security interest in such uncertificated securities has been transferred to and perfected by the Collateral Agent, in accordance
with Sections 8-313, 8-321 and 9-115 of the Uniform Commercial Code or any other similar or local or foreign law that may be applicable).


 


(p)       Change
in Collateral; Collateral Records. The Company shall (i) give the Collateral Agent not less than twenty (20) days’ prior
written notice of any change in the location of any Collateral (as defined in the Security Documents), other than to locations
set forth in the Perfection Certificate (as defined in the Securities Purchase Agreement) hereto and with respect to which the
Collateral Agent has filed financing statements and otherwise fully perfected its Liens thereon, (ii) advise the Collateral Agent
promptly, in sufficient detail, of any material adverse change relating to the type, quantity or quality of the Collateral or
the Lien granted thereon and (iii) execute and deliver, and cause each of its Subsidiaries to execute and deliver, to the Collateral
Agent for the benefit of the Holder and holders of the Other Notes from time to time, solely for the Collateral Agent’s
convenience in maintaining a record of Collateral, such written statements and schedules as the Collateral Agent or any Holder
may reasonably require, designating, identifying or describing the Collateral.


 




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(q)       Controlled
Accounts.


 


(i)       General.
The Company shall promptly following, but in any event within twenty-one (21) days after, the Closing Date (the “Controlled
Account Deadline”), establish and maintain cash management services of a type and on terms reasonably satisfactory to
Holder at and each bank listed on Schedule 15(q)(i) attached hereto or any other bank in each case to the extent the Company
maintains deposit accounts therewith (each a “Controlled Account Bank”) and cause all cash and cash equivalents
of the Company or any of its Subsidiaries to be held in Accounts (as defined in the Security Agreement) at one or more Controlled
Account Banks in accordance therewith. Subject to the foregoing, the Company shall establish and maintain Controlled Account Agreements
(as defined in the Security Agreement) with the Collateral Agent (as defined in the Security Agreement) and each Controlled Account
Bank, in form and substance reasonably acceptable to the Collateral Agent and the Required Holders, with respect to each account
maintained at such bank on behalf of Company and/or its Subsidiaries (each such account a “Controlled Account”
and collectively, the “Controlled Accounts”), and the Operating Accounts (as defined below). Each such Controlled
Account Agreement shall provide, among other things, that (A) the Controlled Account Bank will comply with any and all instructions
originated by the Collateral Agent directing the disposition of the funds in the Controlled Accounts without further consent by
the Company or any such Subsidiaries following and during the continuance of an Event of Default, (B) the Controlled Account Bank
waives, subordinates or agrees not to exercise any rights of setoff or recoupment or any other claim against the applicable Controlled
Account other than for payment of its service fees and other charges directly related to the administration of such Controlled
Account and for returned checks or other items of payment (if so provided in the Controlled Account Bank’s standard form
controlled account agreement), and (C) with respect to each Controlled Account (collectively, the “Operating Accounts”),
upon the instruction of Collateral Agent (an “Activation Instruction”), the Controlled Account Bank shall not
comply following and during the continuance of an Event of Default with any instructions, directions or orders of any form with
respect to the Operating Accounts other than instructions, directions or orders originated by Collateral Agent. The Collateral
Agent shall not issue an Activation Instruction with respect to the Operating Accounts unless an Event of Default has occurred
and is continuing at the time such Activation Instruction is issued.


 


(ii)       Additional
Controlled Account Agreements. If at any time on or after the Controlled Account Deadline, the average daily balance of any
Account of the Company or any of its Subsidiaries that is not subject to a Controlled Account Agreement, in form and substance
reasonably satisfactory to the Collateral Agent and the Required Holders, in favor of the Collateral Agent exceeds $10,000 (the
“Maximum Per Account Free Cash Amount”) during any calendar month (including the calendar month in which the
Closing Date occurs), the Company shall either (x) within twenty-one (21) calendar days following the last day of such calendar
month, deliver to the Collateral Agent a Controlled Account Agreement, in form and substance reasonably satisfactory to the Collateral
Agent, duly executed by the Company and the depositary bank in which such Account is maintained or (y) within two (2) Business
Days following such date, effect a transfer to a Controlled Account of a cash amount sufficient to reduce the amount of the Company’s
or the applicable Subsidiary’s cash held in such Account to an amount not in excess of the Maximum Per Account Free Cash
Amount.


 


(iii)       Maximum
Free Cash Amount. Notwithstanding anything to the contrary contained in Section 15(q)(ii) above, and without limiting any
of the foregoing, if at any time on or after the Controlled Account Deadline, the total aggregate amount of the Company’s
and any of its Subsidiaries, in the aggregate, cash that is not held in a Controlled Account exceeds $50,000 (the “Maximum
Free Cash Amount”), the Company shall within two (2) Business Days following such date, effect a transfer to a Controlled
Account of a cash amount sufficient to reduce the total aggregate amount of the Company’s and its Subsidiaries’, as
applicable, cash that is not held in a Controlled Account to an amount not in excess of the Maximum Free Cash Amount.


 




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(r)       Available
Cash Test; Announcement of Operating Results.


 


(i)       Available
Cash Test. At any time any Notes remains outstanding, the Company’s Available Cash as of each Fiscal Quarter shall equal
or exceed $2,000,000 (the “Available Cash Test”).


 


(ii)       
Operating Results Announcement. Commencing with the Fiscal Quarter ending September 30, 2020, the Company shall publicly
disclose and disseminate (such date, the “Announcement Date”), if the Available Cash Test has not been satisfied
for such Fiscal Quarter or Fiscal Year, as applicable, a statement to that effect no later than the tenth (10th) day
after the end of such Fiscal Quarter or Fiscal Year, as applicable, and such announcement shall include a statement to the effect
that the Company is (or is not, as applicable) in breach of the Available Cash Test for such Fiscal Quarter or Fiscal Year, as
applicable. On the Announcement Date, the Company shall also provide to the Holders a certification, executed on behalf of the
Company by the Chief Financial Officer of the Company, certifying that the Company satisfied the Available Cash Tests for such
Fiscal Quarter if that is the case. If the Company has failed to meet the Available Cash Test for a Fiscal Quarter (a “Financial
Covenant Failure”), on or prior to the Announcement Date, the Company shall provide to the Holders a written certification,
executed on behalf of the Company by the Chief Financial Officer of the Company, certifying that the Available Cash Test has not
been met for such Fiscal Quarter (a “Financial Covenant Failure Notice”). Concurrently with the delivery of
each Financial Covenant Failure Notice to the Holders, the Company shall also make publicly available (as part of a Quarterly
Report on Form 10-Q, Annual Report on Form 10-K or on a Current Report on Form 8-K, or otherwise) the Financial Covenant Failure
Notice and the fact that an Event of Default has occurred under the Notes.


 


(s)       Independent
Investigation. At the reasonable request of the Holder either (x) at any time when an Event of Default has occurred and is
continuing, (y) upon the occurrence and during the continuance of an event that with the passage of time or giving of notice would
constitute an Event of Default or (z) at any time the Holder reasonably believes an Event of Default may have occurred and be
continuing, the Company shall hire an independent, reputable investment bank selected by the Company and approved by the Required
Holders, such approval not to be unreasonably withheld or delayed, to investigate as to whether any breach of this Note has occurred
(the “Independent Investigator”). If the Independent Investigator determines that such breach of this Note
has occurred, the Independent Investigator shall notify the Company of such breach and the Company shall deliver written notice
to each holder of a Note of such breach. In connection with such investigation, the Independent Investigator may, during normal
business hours, inspect all contracts, books, records, personnel, offices and other facilities and properties of the Company and
its Subsidiaries and, to the extent available to the Company after the Company uses reasonable efforts to obtain them, the records
of its legal advisors and accountants (including the accountants’ work papers) and any books of account, records, reports
and other papers not contractually required of the Company to be confidential or secret, or subject to attorney-client or other
evidentiary privilege, and the Independent Investigator may make such copies and inspections thereof as the Independent Investigator
may reasonably request. The Company shall furnish the Independent Investigator with such financial and operating data and other
information with respect to the business and properties of the Company as the Independent Investigator may reasonably request.
The Company shall permit the Independent Investigator to discuss the affairs, finances and accounts of the Company with, and to
make proposals and furnish advice with respect thereto to, the Company’s officers, directors, key employees and independent
public accountants or any of them (and by this provision the Company authorizes said accountants to discuss with such Independent
Investigator the finances and affairs of the Company and any Subsidiaries), all at such reasonable times, upon reasonable notice,
and as often as may be reasonably requested.


 




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16.       SECURITY.
This Note and the Other Notes are secured to the extent and in the manner set forth in the Transaction Documents (including, without
limitation, the Security Agreement, the other Security Documents and the Guaranties).


 


17.       DISTRIBUTION
OF ASSETS. In addition to any adjustments pursuant to Section 6 and 7 above, if the Company shall declare or make any dividend
or other distributions of its assets (or rights to acquire its assets) to all holders of shares of Common Stock, by way of return
of capital or otherwise (including without limitation, any distribution of cash, stock or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction)
(the “Distributions”), then the Holder will be entitled to such Distributions as if the Holder had held the
number of shares of Common Stock acquirable upon complete conversion of this Note (without taking into account any limitations
or restrictions on the convertibility of this Note and assuming for such purpose that the Note was converted at the Conversion
Price as of the applicable record date) immediately prior to the date on which a record is taken for such Distribution or, if
no such record is taken, the date as of which the record holders of Common Stock are to be determined for such Distributions (provided,
however, that to the extent that the Holder’s right to participate in any such Distribution would result in the Holder and
the other Attribution Parties exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution
to the extent of the Maximum Percentage (and shall not be entitled to beneficial ownership of such shares of Common Stock as a
result of such Distribution (and beneficial ownership) to the extent of any such excess) and the portion of such Distribution
shall be held in abeyance for ninety (90) Trading Days for the benefit of the Holder until such time or times during such abeyance
period, if ever, as its right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage,
at which time or times the Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution
or on any subsequent Distribution held similarly in abeyance for additional ninety (90) Trading Days) to the same extent as if
there had been no such limitation). The Holder shall be deemed to have waived the right to receive any such Distributions that
remain held in abeyance at the end of such abeyance period if not granted prior to such time.


 


18.       AMENDING
THE TERMS OF THIS NOTE. Except for Section 3(d)(i) which may not be amended, modified or waived by the parties hereto, the
prior written consent of the Required Holders (as defined in the Securities Purchase Agreement) and the Company shall be required
for any change, waiver or amendment to this Note. Any change, waiver or amendment so approved shall be binding upon all existing
and future holders of this Note and any Other Notes; provided, however, that no such change, waiver or, as applied to any of the
Notes held by any particular holder of Notes, shall, without the written consent of that particular holder, (i) reduce the amount
of Principal, reduce the amount of accrued and unpaid Interest, or extend the Maturity Date, of the Notes, (ii) disproportionally
and adversely affect any rights under the Notes of any holder of Notes; or (iii) modify any of the provisions of, or impair the
right of any holder of Notes under, this Section 18.


 




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19.       TRANSFER.
This Note and any shares of Common Stock issued upon conversion of this Note may be offered, sold, assigned or transferred by
the Holder without the consent of the Company, subject only to the provisions of Section 2(g) of the Securities Purchase Agreement.


 


20.       REISSUANCE
OF THIS NOTE.


 


(a)       Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue
and deliver upon the order of the Holder a new Note (in accordance with Section 20(d)), registered as the Holder may request,
representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being
transferred, a new Note (in accordance with Section 20(d)) to the Holder representing the outstanding Principal not being transferred.
The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii)
following conversion or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less
than the Principal stated on the face of this Note.


 


(b)       Lost,
Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice
as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company
in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall
execute and deliver to the Holder a new Note (in accordance with Section 20(d)) representing the outstanding Principal.


 


(c)       Note
Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal
office of the Company, for a new Note or Notes (in accordance with Section 20(d) and in principal amounts of at least $1,000)
representing in the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such
outstanding Principal as is designated by the Holder at the time of such surrender.


 


(d)       Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall
be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding
(or in the case of a new Note being issued pursuant to Section 20(a) or Section 20(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 on the Principal and
Interest of this Note, from the Issuance Date.


 




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21.       REMEDIES,
CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative
and in addition to all other remedies available under this Note and any of the other Transaction Documents at law or in equity
(including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s
right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. No failure
on the part of the Holder to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise by the Holder of any right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. In addition, the exercise of any right or remedy of the Holder at
law or equity or under this Note or any of the documents shall not be deemed to be an election of Holder’s rights or remedies
under such documents or at law or equity. The Company covenants to the Holder that there shall be no characterization concerning
this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion
and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly
provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that
a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such
breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder
shall be entitled, in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent
injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving
actual damages and without posting a bond or other security. The Company shall provide all information and documentation to the
Holder that is reasonably requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms
and conditions of this Note (including, without limitation, compliance with Section 7).


 


22.       PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement
or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this
Note or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company
or other proceedings affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay
the costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization,
receivership or other proceeding, including, without limitation, attorneys’ fees and disbursements. The Company expressly
acknowledges and agrees that no amounts due under this Note shall be affected, or limited, by the fact that the purchase price
paid for this Note was less than the original Principal amount hereof.


 




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23.       CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed
against any such Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part
of, or affect the interpretation of, this Note. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed
to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,”
“include” and words of like import shall be construed broadly as if followed by the words “without limitation.”
The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Note
instead of just the provision in which they are found. Unless expressly indicated otherwise, all section references are to sections
of this Note. Terms used in this Note and not otherwise defined herein, but defined in the other Transaction Documents, shall
have the meanings ascribed to such terms on the Closing Date in such other Transaction Documents unless otherwise consented to
in writing by the Holder.


 


24.       FAILURE
OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other
or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and
signed by an authorized representative of the waiving party. Notwithstanding the foregoing, nothing contained in this Section
24 shall permit any waiver of any provision of Section 3(d).


 


25.       DISPUTE
RESOLUTION.


 


(a)       Submission
to Dispute Resolution.


 


(i)       In
the case of a dispute relating to a Closing Bid Price, a Closing Sale Price, a Conversion Price, an Alternate Conversion Price,
a VWAP or a fair market value or the arithmetic calculation of a Conversion Rate, or the applicable Redemption Price (as the case
may be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company or the Holder
(as the case may be) shall submit the dispute to the other party via facsimile or electronic mail (A) if by the Company, within
two (2) Business Days after the occurrence of the circumstances giving rise to such dispute or (B) if by the Holder at any time
after the Holder learned of the circumstances giving rise to such dispute. If the Holder and the Company are unable to promptly
resolve such dispute relating to such Closing Bid Price, such Closing Sale Price, such Conversion Price, such Alternate Conversion
Price, such VWAP or such fair market value, or the arithmetic calculation of such Conversion Rate or such applicable Redemption
Price (as the case may be), at any time after the fifth (5th) Business Day following such initial notice by the Company
or the Holder (as the case may be) of such dispute to the Company or the Holder (as the case may be), then the Holder may, at
its sole option, select an independent, reputable investment bank reasonably acceptable to the Company to resolve such dispute.


 




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(ii)       The
Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in
accordance with the first sentence of this Section 25 and (B) written documentation supporting its position with respect to such
dispute, in each case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following
the date on which the Holder selected such investment bank (the “Dispute Submission Deadline”) (the documents
referred to in the immediately preceding clauses (A) and (B) are collectively referred to herein as the “Required Dispute
Documentation”) (it being understood and agreed that if either the Holder or the Company fails to so deliver all of
the Required Dispute Documentation by the Dispute Submission Deadline, then the party who fails to so submit all of the Required
Dispute Documentation shall no longer be entitled to (and hereby waives its right to) deliver or submit any written documentation
or other support to such investment bank with respect to such dispute and such investment bank shall resolve such dispute based
solely on the Required Dispute Documentation that was delivered to such investment bank prior to the Dispute Submission Deadline).
Unless otherwise agreed to in writing by both the Company and the Holder or otherwise requested by such investment bank, neither
the Company nor the Holder shall be entitled to deliver or submit any written documentation or other support to such investment
bank in connection with such dispute (other than the Required Dispute Documentation).


 


(iii)       The
Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and
the Holder of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The
fees and expenses of such investment bank shall be borne solely by the Company (unless such investment bank determines that the
Holder’s claim in the dispute is without any merit, in which case such fees and expenses of such investment bank shall be
borne by the Holder), and such investment bank’s resolution of such dispute shall be final and binding upon all parties
absent manifest error.


 


(b)       Miscellaneous.
The Company expressly acknowledges and agrees that (i) this Section 25 constitutes an agreement to arbitrate between the Company
and the Holder (and constitutes an arbitration agreement) under § 7501, et seq. of the New York Civil Practice Law and Rules
(“CPLR”) and that the Holder is authorized to apply for an order to compel arbitration pursuant to CPLR §
7503(a) in order to compel compliance with this Section 25, (ii) the terms of this Note and each other applicable Transaction
Document shall serve as the basis for the selected investment bank’s resolution of the applicable dispute, such investment
bank shall be entitled (and is hereby expressly authorized) to make all findings, determinations and the like that such investment
bank determines are required to be made by such investment bank in connection with its resolution of such dispute and in resolving
such dispute such investment bank shall apply such findings, determinations and the like to the terms of this Note and any other
applicable Transaction Documents, (iii) the Holder (and only the Holder), in its sole discretion, shall have the right to submit
any dispute described in this Section 25 to any state or federal court sitting in The City of New York, Borough of Manhattan in
lieu of utilizing the procedures set forth in this Section 25 and (iv) nothing in this Section 25 shall limit the Holder from
obtaining any injunctive relief or other equitable remedies (including, without limitation, with respect to any matters described
in this Section 25).


 




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26.       NOTICES;
CURRENCY; PAYMENTS.


 


(a)       Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance
with Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all
actions taken pursuant to this Note, including in reasonable detail a description of such action and the reason therefore. Without
limiting the generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment
of the Conversion Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least
five (5) Trading Days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend
or distribution upon the Common Stock, (B) with respect to any grant, issuances, or sales of any Options, Convertible Securities
or rights to purchase stock, warrants, securities or other property to holders of shares of Common Stock or (C) for determining
rights to vote with respect to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information
shall be made known to the public prior to or in conjunction with such notice being provided to the Holder.


 


(b)       Currency.
All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts
owing under this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into
the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate”
means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange
rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an
amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such period
of time).


 


(c)       Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, unless otherwise expressly set
forth herein, such payment shall be made in lawful money of the United States of America by a certified check drawn on the account
of the Company and sent via overnight courier service to such Person at such address as previously provided to the Company in
writing (which address, in the case of each of the Buyers, shall initially be as set forth on the Schedule of Buyers attached
to the Securities Purchase Agreement), provided that the Holder may elect to receive a payment of cash via wire transfer of immediately
available funds by providing the Company with prior written notice setting out such request and the Holder’s wire transfer
instructions. Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a Business Day,
the same shall instead be due on the next succeeding day which is a Business Day. Any amount of Principal or other amounts due
under the Transaction Documents which is not paid when due shall result in a late charge being incurred and payable by the Company
in an amount equal to interest on such amount at the rate of eighteen percent (18%) per annum from the date such amount was due
until the same is paid in full (“Late Charge”).


 


27.       CANCELLATION.
After all Principal, accrued Interest, Late Charges and other amounts at any time owed on this Note have been paid in full, this
Note shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.


 




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28.       WAIVER
OF NOTICE. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and
all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and
the Securities Purchase Agreement.


 


29.       GOVERNING
LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Note shall be governed by, the internal laws of the State of New York, without giving effect
to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State of New York. Except as otherwise required by Section
25 above, 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. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. Nothing contained herein (i) shall be deemed or operate
to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect
on the Company’s obligations to the Holder, 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 or (ii) shall limit, or shall be deemed or construed to limit,
any provision of Section 25. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED
HEREBY.


 


30.       JUDGMENT
CURRENCY.


 


(a)       If
for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to
convert into any other currency (such other currency being hereinafter in this Section 30 referred to as the “Judgment
Currency”) an amount due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing
on the Trading Day immediately preceding:


 


(i)       the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or


 


(ii)       the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as
of which such conversion is made pursuant to this Section 30(a)(ii) being hereinafter referred to as the “Judgment Conversion
Date”).


 




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(b)       If
in the case of any proceeding in the court of any jurisdiction referred to in Section 30(a)(ii) above, there is a change in the
Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted
at the Exchange Rate prevailing on the date of payment, will produce the amount of US dollars which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment
Conversion Date.


 


(c)       Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Note.


 


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


 


32.       MAXIMUM
PAYMENTS. Without limiting Section 9(d) of the Securities Purchase Agreement, nothing contained herein shall be deemed to
establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law.
In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law,
any payments in excess of such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to
the Company.


 


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


 


(a)       “1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.


 


(b)       “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.


 


(c)       “Affiliate”
means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common
control with, such Person, it being understood for purposes of this definition that “control” of a Person means the
power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of directors
of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.


 




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(d)       “Alternate
Conversion Event of Default” means (i) four or more occurrences of Events of Default arising pursuant to either Section
4(a)(i) or Section 4(a)(iii), (ii) any Event of Default arising pursuant to Sections 4(a)(v) through, and including, Section 4(a)(xiii),
(iii) any Event of Default arising pursuant to 4(a)(ii), 4(a)(xv) or 4(a)(xvi), or (iv) any other Event of Default that remains
uncured for a period of thirty (30) calendar days.


 


(e)       “Alternate
Conversion Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant
to wire instructions delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the higher
of (I) the highest price that the Common Stock trades at on the Trading Day immediately preceding the relevant Alternate Conversion
Date and (II) the applicable Alternate Conversion Price and (B) the difference obtained by subtracting (I) the number of shares
of Common Stock delivered (or to be delivered) to the Holder on the applicable Share Delivery Deadline with respect to such Alternate
Conversion from (II) the quotient obtained by dividing (x) the applicable Conversion Amount that the Holder has elected to be
the subject of the applicable Alternate Conversion, by (y) the applicable Alternate Conversion Price without giving effect to
clause (x) of such definition.


 


(f)       
“Alternate Conversion Price” means, with respect to any Alternate Conversion that price which shall be the
lower of (i) the applicable Conversion Price as in effect on the applicable Conversion Date of the applicable Alternate Conversion
and (ii) the greater of (x) the Floor Price and (y) the lowest of (A) 80% of the VWAP of the Common Stock as of the Trading Day
immediately preceding the delivery or deemed delivery of the applicable Conversion Notice, (B) 80% of the VWAP of the Common Stock
as of the Trading Day of the delivery or deemed delivery of the applicable Conversion Notice and (C) 80% of the price computed
as the quotient of (I) the sum of the VWAP of the Common Stock for each of the two (2) Trading Days with the lowest VWAP of the
Common Stock during the ten (10) consecutive Trading Day period ending and including the Trading Day immediately preceding the
delivery or deemed delivery of the applicable Conversion Notice, divided by (II) two (2) (such period, the “Alternate
Conversion Measuring Period”). All such determinations to be appropriately adjusted for any stock dividend, stock split,
stock combination, reclassification or similar transaction that proportionately decreases or increases the Common Stock during
such Alternate Conversion Measuring Period.


 


(g)       “Attribution
Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds,
feeder funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised
by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the
Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder
or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could
be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity,
the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.


 




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(h)       “Available
Cash” means, with respect to any date of determination, an amount equal to the aggregate amount of the Cash of the Company
and its Subsidiaries (excluding for this purpose cash held in restricted accounts or otherwise unavailable for unrestricted use
by the Company or any of its Subsidiaries for any reason) as of such date of determination held in bank accounts of financial
banking institutions in the United States of America.


 


(i)       
“Bloomberg” means Bloomberg, L.P.


 


(j)       “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification,
commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations
at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers)
of commercial banks in The City of New York generally are open for use by customers on such day.


 


(k)       “Cash”
of the Company and its Subsidiaries on any date shall be determined from such Persons’ books maintained in accordance with
GAAP, and means, without duplication, the cash, cash equivalents and Eligible Marketable Securities accrued by the Company and
its wholly owned Subsidiaries on a consolidated basis on such date.


 


(l)       “Change
of Control” means any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect,
wholly-owned Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification
of the shares of Common Stock in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization
or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly traded securities
and, directly or indirectly, are, in all material respects, the holders of the voting power of the surviving entity (or entities
with the authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation)
of such entity or entities) after such reorganization, recapitalization or reclassification, or (iii) pursuant to a migratory
merger effected solely for the purpose of changing the jurisdiction of incorporation of the Company or any of its Subsidiaries.


 


(m)       “Change
of Control Redemption Premium” means 115%.


 




    	36



     


    

 


(n)       “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid
price and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if
the Principal Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing
trade price (as the case may be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00
p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading
market for such security, the last closing bid price or last trade price, respectively, of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply,
the last closing bid price or last trade price, respectively, of such security in the over-the-counter market on the electronic
bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported
for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such
security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the Closing Bid
Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing
Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such
security, then such dispute shall be resolved in accordance with the procedures in Section 25. All such determinations shall be
appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions
during such period.


 


(o)       “Closing
Date” shall have the meaning set forth in the Securities Purchase Agreement, which date is the date the Company initially
issued Notes pursuant to the terms of the Securities Purchase Agreement.


 


(p)       “Common
Stock” means (i) the Company’s shares of common stock, $0.001 par value per share, and (ii) any capital stock
into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(q)       “Conversion
Floor Price Condition” means that the relevant Alternate Conversion Price is being determined based on clause (x) of
such definitions.


 


(r)       
“Convertible Securities” means any stock or other security (other than Options) that is at any time and under
any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the
holder thereof to acquire, any shares of Common Stock.


 


(s)       “Current
Subsidiary” means any Person in which the Company on the Subscription Date, directly or indirectly, (i) owns at least
25% of the outstanding capital stock or holds at least 25% of the outstanding equity or similar interest of such Person or (ii)
controls the business, operations or administration of such Person, and all of the foregoing, collectively, “Current
Subsidiaries”.


 


(t)       
“Eligible Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the
Nasdaq Global Market or the Principal Market.


 


(u)       “Eligible
Marketable Securities” as of any date means marketable securities which would be reflected on a consolidated balance
sheet of the Company and its Subsidiaries prepared as of such date in accordance with GAAP, and which are permitted under the
Company’s investment policies as in effect on the Issuance Date or approved thereafter by the Company’s Board of Directors.


 




    	37



     


    

 


(v)       “Fiscal
Quarter” means each of the fiscal quarters adopted by the Company for financial reporting purposes that correspond to
the Company’s fiscal year as of the date hereof that ends on December 31.


 


(w)       “Fiscal
Year” means the fiscal year adopted by the Company for financial reporting purposes as of the date hereof that ends
on December 31.


 


(x)       “Floor
Price” means $0.46 (or such lower amount as permitted, from time to time, by the Principal Market), subject to adjustment
for stock splits, stock dividends, stock combinations, recapitalizations or other similar events.


 


(y)       
“Fundamental Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries,
Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company
is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially
all of the properties or assets of the Company and its Significant Subsidiaries to one or more Subject Entities, or (iii) make,
or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Stock be subject to or
party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least
either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any
shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party
to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject
Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer,
become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares
of Common Stock, or (iv) consummate a stock or share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby all such Subject
Entities, individually or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at
least 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the Subject Entities
making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or other business
combination were not outstanding; or (z) such number of shares of Common Stock such that the Subject Entities become collectively
the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common Stock,
or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company shall, directly or indirectly, including
through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject Entity individually or the
Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the 1934
Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction
in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off,
scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x)
at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50% of the
aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of
the date of this Note calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z)
a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity
securities of the Company sufficient to allow such Subject Entities to effect a statutory short form merger or other transaction
requiring other stockholders of the Company to surrender their shares of Common Stock without approval of the stockholders of
the Company or (C) directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions,
the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents,
the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict
conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition
which may be defective or inconsistent with the intended treatment of such instrument or transaction.


 




    	38



     


    

 


(z)
“GAAP” means United States generally accepted accounting principles, consistently applied.


 


(aa)
“Group” means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined
in Rule 13d-5 thereunder.


 


(bb)
“Holder Pro Rata Amount” means a fraction (i) the numerator of which is the original Principal amount of
this Note on the Closing Date and (ii) the denominator of which is the aggregate original principal amount of all Notes
issued to the initial purchasers pursuant to the Securities Purchase Agreement on the Closing Date.


 


(cc)
“Indebtedness” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(dd)
“Interest Date” means, with respect to any given calendar month, the last Trading Day in such calendar month.


 


(ee)
“Interest Rate” means 7.875% per annum, as may be adjusted from time to time in accordance with
Section 2.


 


(ff)
“Lucid Call Right” means that certain call right in favor of Case Western Reserve University pursuant
to the shareholders agreement of Lucid Diagnostics, as in effect as of the date hereof.


 


(gg)
“Lucid Diagnostics” means Lucid Diagnostics Inc., a Delaware corporation.


 


(hh)
“Maturity Date” shall mean August 5, 2022; provided, however, the Maturity Date may be extended
at the option of the Holder (i) in the event that, and for so long as, an Event of Default shall have occurred and be continuing
or any event shall have occurred and be continuing that with the passage of time and the failure to cure would result in an Event
of Default or (ii) through the date that is twenty (20) Business Days after the consummation of a Fundamental Transaction in the
event that a Fundamental Transaction is publicly announced or a Change of Control Notice is delivered prior to the Maturity Date,
provided further that if a Holder elects to convert some or all of this Note pursuant to Section 3 hereof, and the Conversion
Amount would be limited pursuant to Section 3(d) hereunder, the Maturity Date shall automatically be extended until such time
as such provision shall not limit the conversion of this Note.


 




    	39



     


    

 


(ii)
“New Significant Subsidiary” means any New Subsidiary that is a
Significant Subsidiary (as defined in the Securities Purchase Agreement).


 


(jj)
“New Subsidiary” means, as of any date of determination, any Person in which the Company after the
Subscription Date, directly or indirectly, (i) owns at least 25% of the outstanding capital stock or holds at least 25% of
the outstanding equity or similar interest of such Person or (ii) controls the business, operations or administration of such
Person, and all of the foregoing, collectively, “New Subsidiaries”.


 


(kk)
 “Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock
or Convertible Securities.


 


(ll)
“Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable
Person and whose common stock or equivalent equity security is quoted or listed on an Eligible Market, or, if there is more
than one such Person or Parent Entity, the Person or Parent Entity with the largest public market capitalization as of the
date of consummation of the Fundamental Transaction.


 


(mm)
“Permitted Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii)
Indebtedness set forth on Schedule 3(s) to the Securities Purchase Agreement, as in effect as of the Subscription Date
(excluding any Permitted Intercompany Indebtedness), (iii) Indebtedness secured by Permitted Liens or unsecured but as
described in clauses (iv) and (v) of the definition of Permitted Liens, (iv) up to $500,000 of Indebtedness of Lucid
Diagnostics, in the aggregate, owed to any Governmental Entity (as defined in the Securities Purchase Agreement) or bona fide
educational institution (or such bona fide investment entity of such educational institution), (v) Permitted Insurance
Indebtedness, and (vi) up to $12,000,000 of Permitted Intercompany Indebtedness.


 


(nn)
“Permitted Insurance Indebtedness” means Indebtedness in respect of the financing of insurance
premiums in a manner consistent with past practice.


 


(oo)
“Permitted Intercompany Indebtedness” means Indebtedness
incurred by any Subsidiary owed to the Company, which Indebtedness was incurred for working capital purposes.


 




    	40



     


    

 


(pp)
“Permitted Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by
appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising
in the ordinary course of business by operation of law with respect to a liability that is not yet due or delinquent, (iii) any
Lien created by operation of law, such as materialmen’s liens, mechanics’ liens and other similar liens, arising in
the ordinary course of business with respect to a liability that is not yet due or delinquent or that are being contested in good
faith by appropriate proceedings, (iv) Liens (A) upon or in any equipment acquired or held by the Company or any of its Subsidiaries
to secure the purchase price of such equipment or Indebtedness incurred solely for the purpose of financing the acquisition or
lease of such equipment, or (B) existing on such equipment at the time of its acquisition, provided that the Lien is confined
solely to the property so acquired and improvements thereon, and the proceeds of such equipment, in either case, with respect
to Indebtedness in an aggregate amount not to exceed $100,000, (v) Liens incurred in connection with the extension, renewal or
refinancing of the Indebtedness secured by Liens of the type described in clause (iv) above, provided that any extension, renewal
or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal amount of the Indebtedness
being extended, renewed or refinanced does not increase, (vi) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payments of custom duties in connection with the importation of goods, (vii) Liens securing Indebtedness in respect
of the financing of insurance premiums in a manner consistent with past practice, and (viii) Liens arising from judgments, decrees
or attachments in circumstances not constituting an Event of Default under Section 4(a)(xi).


 


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


 


(rr)
“Principal Market” means the Nasdaq Capital Market.


 


(ss)
“Redemption Notices” means, collectively, the Event of Default Redemption Notices, Company Optional
Redemption Notices, Subsequent Placement Optional Redemption Notices, Holder Optional Redemption Notices and the Change of
Control Redemption Notices, and each of the foregoing, individually, a “Redemption Notice.”


 


(tt)
“Redemption Premium” means 115%.


 


(uu)
“Redemption Prices” means, collectively, Event of Default Redemption Prices, Subsequent Placement Optional
Redemption Prices, Holder Optional Redemption Prices, Company Optional Redemption Prices and the Change of Control Redemption
Prices, and each of the foregoing, individually, a “Redemption Price.”


 


(vv)
“SEC” means the United States Securities and Exchange Commission or the successor thereto.


 


(ww)
“Securities Purchase Agreement” means that certain securities purchase agreement, dated as of the
Subscription Date, by and among the Company and the initial holders of the Notes pursuant to which the Company issued the
Notes, as may be amended from time to time.


 




    	41



     


    

 


(xx)
“Subscription Date” means August 5, 2020.


 


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


 


(zz)
 “Subsidiaries” means, as of any date of determination, collectively, all Current Subsidiaries and all
New Subsidiaries, and each of the foregoing, individually, a “Subsidiary.”


 


(aaa)
“Successor Entity” means the Person (or, if so elected by the Holder, the Parent Entity) formed by,
resulting from or surviving any Fundamental Transaction or the Person (or, if so elected by the Holder, the Parent Entity)
with which such Fundamental Transaction shall have been entered into.


 


(bbb)
“Trading Day” means, as applicable, (x) with respect to all price or trading volume determinations
relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal
Market is not the principal trading market for the Common Stock, then on the principal 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) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all
determinations other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or
any successor thereto) is open for trading of securities.


 


(ccc)
“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such
security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on
the principal securities exchange or securities market on which such security is then traded) 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, if no dollar
volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing
bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink
sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on
such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually
determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of
such security, then such dispute shall be resolved in accordance with the procedures in Section 25. All such determinations
shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar
transaction during such period.


 




    	42



     


    

 


34.       DISCLOSURE.
Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance with the terms
of this Note, unless the Company has in good faith determined that the matters relating to such notice do not constitute material,
non-public information relating to the Company or any of its Subsidiaries, the Company shall within one (1) Business Day of such
receipt or prior to (or simultaneous with) such delivery, as applicable, publicly disclose such material, non-public information
on a Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice contains material, non-public
information relating to the Company or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing
in such notice (or immediately upon receipt of notice from the Holder, as applicable), and in the absence of any such written
indication in such notice (or notification from the Company immediately upon receipt of notice from the Holder), the Holder shall
be entitled to presume that information contained in the notice does not constitute material, non-public information relating
to the Company or any of its Subsidiaries. Nothing contained in this Section 34 shall limit any obligations of the Company, or
any rights of the Holder, under Section 4(i) of the Securities Purchase Agreement.


 


35.       ABSENCE
OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of
the Company and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the
Company or (b) refrain from trading any securities while in possession of such information in the absence of a written non-disclosure
agreement signed by an officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the
absence of such an executed, written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any
securities issued by the Company, may possess and use any information provided by the Company in connection with such trading
activity, and may disclose any such information to any third party.


 


[signature
page follows]


 




    	43



     


    

 


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


 


	 	PAVMED
    INC.
	 	 
	 	By:	      
	 	Name:	
	 	Title:	


 


Senior
Convertible Note - Signature Page 


 




    	 



     


    

 


EXHIBIT
I


 


PAVMED
INC.


CONVERSION NOTICE


 


Reference
is made to the Senior Convertible Note (the “Note”) issued to the undersigned by PAVmed Inc., a Delaware corporation
(the “Company”). In accordance with and pursuant to the Note, the undersigned hereby elects to convert the
Conversion Amount (as defined in the Note) of the Note indicated below into shares of Common Stock, $0.001 par value per share
(the “Common Stock”), of the Company, as of the date specified below. Capitalized terms not defined herein
shall have the meaning as set forth in the Note.


 


	Date
    of Conversion:	 


 


	Aggregate
    Principal to be converted:	 



 


	Aggregate
    accrued and unpaid Interest and accrued and unpaid Late Charges with respect to such portion of the Aggregate Principal and
    such Aggregate Interest to be converted:	 



 


	AGGREGATE
    CONVERSION AMOUNT

    TO BE CONVERTED:	 


 


Please confirm the following information:



 


	Conversion
    Price:	 


 


	Number
    of shares of Common Stock to be issued:	 


 


	[  ]       If
        this Conversion Notice is being delivered with respect to an Alternate Conversion, check here if Holder is electing to
        use the following Alternate Conversion Price:____________

         

        Please
        issue the Common Stock into which the Note is being converted to Holder, or for its benefit, as follows:

         

        [  ]       Check
        here if requesting delivery as a certificate to the following name and to the following address:



 


	Issue
    to:	 
	 	 
	 	 


 


	     [  ]     Check
here if requesting delivery by Deposit/Withdrawal at Custodian as follows:


 


	DTC
    Participant:	 
	DTC
    Number:	 
	Account
    Number:	 


 


Date:
_____________ __,


 


__________________________

Name of Registered Holder


 


By:
_______________________

Name:

Title:


Tax ID:_____________________


 


Facsimile:___________________


 


E-mail
Address:


 




    	 



     


    

 


Exhibit
II


 


ACKNOWLEDGMENT


 


The
Company hereby (a) acknowledges this Conversion Notice, (b) certifies that the above indicated number of shares of Common Stock
[are][are not] eligible to be resold by the Holder either (i) pursuant to Rule 144 (subject to the Holder’s execution and
delivery to the Company of a customary 144 representation letter) or (ii) an effective and available registration statement and
(c) hereby directs _________________ to issue the above indicated number of shares of Common Stock in accordance with the Transfer
Agent Instructions dated _____________, 20__ from the Company and acknowledged and agreed to by ________________________.


 


 


	 	PAVMED
    INC.
	 	 
	 	By:	            
	 	Name:	
	 	Title: