Exhibit 10.1


 


EXECUTION COPY


 


SECURITIES
PURCHASE AGREEMENT


 


This SECURITIES
PURCHASE AGREEMENT (the “Agreement”), dated as of January 11, 2018, is by and among Helios and Matheson
Analytics Inc., a Delaware corporation with offices located at Empire State Building, 350 5th Avenue, New York, New York 10118
(the “Company”), and each of the investors listed on the Schedule of Buyers attached hereto (individually, a
“Buyer” and collectively, the “Buyers”).


 


RECITALS


 


A. The Company and
each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section
4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of Regulation D (“Regulation D”)
as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act.


 


B. The Company has
authorized (i) a new series of senior subordinated convertible notes of the Company, in the aggregate original principal amount
of $25 million, substantially in the form attached hereto as Exhibit A-1 (the “Series A-1 Notes”),
which Series A-1 Notes shall be convertible into shares of Common Stock (as defined below) (the shares of Common Stock issuable
pursuant to the terms of the Series A-1 Notes, including, without limitation, upon conversion or otherwise, collectively, the “Series
A-1 Conversion Shares”), in accordance with the terms of the Notes and (ii) a new series of senior secured convertible
notes of the Company, in the aggregate original principal amount of $35 million, substantially in the form attached hereto as Exhibit
A-2 (the “Series B-1 Notes”, and together with the Series A-1 Notes, the “Notes”),
which Series B-1 Notes shall be convertible into shares of Common Stock (as defined below) (the shares of Common Stock issuable
pursuant to the terms of the Series B-1 Notes, including, without limitation, upon conversion or otherwise, collectively, the “Series
B-1 Conversion Shares”, and together with the Series A-1 Conversion Shares, the “Conversion Shares”),
in accordance with the terms of the Series B-1 Notes.


 


C. Each Buyer wishes
to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) a Series A-1 Note in the
aggregate original principal amount set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers (the “Series
A-1 Note”) and (ii) a Series B-1 Note in the aggregate original principal amount set forth opposite such Buyer’s
name in column (4) on the Schedule of Buyers.


 


D. The Notes and the
Conversion Shares are collectively referred to herein as the “Securities.”


 


E. Concurrently herewith
the Company and each Buyer, separately, have entered into a Note Securities Purchase Agreement in the form attached hereto as Exhibit
B (each as amended, modified, supplemented, extended, renewed, restated or replaced from time to time, collectively, the
“Note Purchase Agreements”) pursuant to which the Company shall acquire a secured promissory note issued by
the applicable Buyer (each, an “Investor Note”, and collectively, the “Investor Notes”) as
payment of the Series B-1 Purchase Price (as defined below) hereunder.


 






     


     


    

 


F. On August 15, 2017,
the Company and a Buyer hereunder (the “August Buyer”) entered into a securities purchase agreement (the “August
Securities Purchase Agreement”), pursuant to which such August Buyer purchased (i) certain August Notes (as defined in
the Notes) and (ii) August Warrants (as defined in the Notes). On November 6, 2017, the Company and a Buyer hereunder (the “November
Buyer”) entered into a securities purchase agreement, as amended (the “November Securities Purchase Agreement”),
pursuant to which such November Buyer purchased certain November Notes (as defined in the Notes). On November 21, 2017, the Company
and the August Buyer entered into a Fourth Amendment and Exchange Agreement (the “Fourth Exchange Agreement”)
pursuant to which the August Warrants were exchanged for the Exchange Warrants as defined in the Fourth Exchange Agreement.


 


G. The Series A-1 Notes
and such portion of each Series B-1 Notes consisting of Unrestricted Principal (as defined in the Series B-1 Notes) will be subordinate
solely with respect to cash payments (other than Permitted Payments (as defined in the Notes)) to the August Notes and the November
Notes and senior to all outstanding and future indebtedness of the Company, and its Subsidiaries (as defined below) (other than
Permitted Indebtedness (as defined in the Notes) secured by Permitted Liens (as defined in the Notes)), except that such portion
of each Series B-1 Note consisting of Restricted Principal (as defined in the Series B-1 Notes) will be secured by the Investor
Note related thereto (collectively, the “Ranking”) and the obligations of the Company under the Notes and the
other Transaction Documents (as defined below) will be guaranteed by MoviePass Inc., a Delaware corporation (“MoviePass”)
pursuant to a guaranty in the form attached hereto as Exhibit C (each, a “Guaranty”, and together
with the other security documents and agreements entered into in connection with this Agreement and each of such other documents
and agreements, as each may be amended or modified from time to time, collectively, the “Security Documents”).


 


H. Concurrently herewith,
the Company and each Buyer, separately, are entering into that certain Master Netting Agreement, in substantially the form attached
hereto as Exhibit D (the “Master Netting Agreement”), to provide further clarification of their
rights (but not, in the case of each such Buyer only, its obligation) to Net (as defined below) certain Obligations (as defined
in the Master Netting Agreement) arising under and across this Agreement, the Investor Note, the Series B-1 Notes and the Note
Purchase Agreement (collectively, the “Underlying Agreements”) and to treat the Master Netting Agreement, this
Agreement and the other Underlying Agreements as a single agreement for the purposes set forth herein and to treat this Agreement
and the Note Purchase Agreement each as a “securities contract” (11 U.S.C. § 741) or other similar agreements.


 


I. The Company has
engaged Canaccord Genuity Inc. as the placement agent (the “Placement Agent”) for the offering of the Securities
on a “best efforts” basis.


 


AGREEMENT


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:


 


1. PURCHASE AND
SALE OF NOTES.


 


(a) Purchase of
Notes. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and
7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the
Company on the Closing Date (as defined below) (i) a Series A-1 Note in the original principal amount as is set forth opposite
such Buyer’s name in column (3) on the Schedule of Buyers and (ii) a Series B-1 Note in the original principal amount as
is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers.


 






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(b) Closing.
The closing (the “Closing”) of the purchase of the Notes by the Buyers shall occur at the offices of Kelley
Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. The date and time of the Closing (the “Closing Date”)
shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections
6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein
“Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York,
New York are authorized or required by law to remain closed.


 


(c) Purchase Price.
The aggregate purchase price for the Notes to be purchased by each Buyer (the “Purchase Price”) shall be (i)
the aggregate amount as set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers, consisting of (A)
a payment in cash of such aggregate amount as set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers
(the “Series A-1 Cash Purchase Price”) (less, in the case of any Buyer, the amounts withheld pursuant to Section
4(g)) to the Company for the Series A-1 Notes to be issued and sold to such Buyer at the Closing, by wire transfer of immediately
available funds in accordance with the Flow of Funds Letter (as defined below) and (B) the aggregate amount as set forth opposite
such Buyer’s name in column (7) on the Schedule of Buyers (the “Series B-1 Purchase Price”) to be satisfied,
in full, by the issuance by such Buyer of an Investor Note in the aggregate original principal amount equal to the Series B-1
Purchase Price. In addition, at the Closing, an authorized person of such Buyer shall certify in a written certificate in the
form attached hereto as Exhibit E (the “Investor Collateral Certificate”) that as of the Closing
Date the bank account described on Schedule I to such Investor Note, which secures such Investor Note in accordance therewith,
contains at least the Series B-1 Purchase Price of Eligible Assets (as defined in the Investor Note) as of the Closing Date.


 


(d) Form of Payment.
On the Closing Date, (i) each Buyer shall (A) pay its respective Series A-1 Cash Purchase Price (less, in the case of any Buyer,
the amounts withheld pursuant to Section 4(g)) to the Company for the Series A-1 Notes to be issued and sold to such Buyer at
the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and
(B) issue the Investor Note of such Buyer to the Company, in such original principal amount as is set forth across from such Buyer’s
name in column (7) of the Schedule of Buyers, which the Company hereby irrevocably directs such Buyer to hold as Collateral (as
defined in the Series B-1 Note of such Buyer) for the obligations of the Company under the Series B-1 Notes, and (ii) the
Company shall deliver to each Buyer (A) a Series A-1 Note in the aggregate original principal amount as is set forth opposite
such Buyer’s name in column (3) of the Schedule of Buyers and (B) a Series B-1 Note in the aggregate original principal
amount as is set forth opposite such Buyer’s name in column (4) of the Schedule of Buyers, in each case, duly executed on
behalf of the Company and registered in the name of such Buyer or its designee.


 






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(e) Securities Contract;
Netting Safe Harbor. The Company hereby acknowledges and agrees that the rights and obligations of each Buyer under the Note
Purchase Agreement of such Buyer, under the Investor Note of such Buyer, under the Series B-1 Note to be issued hereunder to such
Buyer and the rights and obligations of the Company hereunder, under each such Investor Note, under each such Series B-1 Note and
under each such Note Purchase Agreement, respectively, arise in a single integrated transaction and constitute related and interdependent
obligations within such transaction. The Company and each Buyer, severally, hereby acknowledge and agree that this Agreement and
the Note Purchase Agreement each are a “securities contract” as defined in 11 U.S.C. § 741 and that each such
Buyer shall have all rights in respect of the Master Netting Agreement, this Agreement and the other Underlying Agreements as are
set forth in 11 U.S.C. § 555 and 11 U.S.C. § 362(b)(6), including, without limitation, all rights of credit, deduction,
setoff, offset, recoupment, and netting (collectively, “Netting”) as are available under the Master Netting
Agreement, this Agreement and the other Underlying Agreements, and all Netting provisions of the Master Netting Agreement, each
Series B-1 Note and each Investor Note, including without limitation the provisions set forth in Section 7 of each Investor Note,
are hereby incorporated in this Agreement and made a part hereof as if such provisions were set forth herein.


 


(f) Consents and
Waivers.


 


(i) The August
Buyer signatory hereto, in its capacity as a holder of August Notes and Exchange Warrants, hereby consents to the
transactions contemplated hereby (x) agrees the Notes shall constitute Permitted Indebtedness (as defined in the August
Notes) and Permitted Liens (as defined in the August Notes) thereunder, which shall reflect the Ranking, and (y) waives (1)
any violation of Sections 4(k) and 4(n) of the August Securities Purchase Agreement (and any similar sections in any prior
securities purchase agreements between the August Buyer and the Company) with respect hereto; (2) any right that the August
Buyer may have to adjust the Exercise Price and the number of Warrant Shares (each as defined in the Exchange Warrants)
pursuant to Section 2 of the Exchange Warrants as a result of the issuance of the Notes or any of the Conversion Shares,
which waiver shall be binding on all existing and future holders of the Exchange Warrants in accordance with Section 9 of the
Exchange Warrants (the “Exchange Warrants Anti-Dilution Waiver”); (3) any prohibition that may exist under
any provision of the Transaction Documents (as defined in the August Securities Purchase Agreement) with respect to the
issuance of the Notes and any of the Conversion Shares and with respect to any cash payments that the Company may make
pursuant to the Notes (the “August Negative Covenants Waiver”); and (4) the August Buyer’s right to
substitute the Variable Price (as defined in the August Notes) of the Notes for the Conversion Price (as defined in
the August Notes) and to waive the Holder’s right to substitute the Variable Price (as defined in the Exchange Warrant)
of the Exchange Warrant for the Conversion Price (collectively, the “August Variable Price Securities
Waiver”).


 


(ii) Each
November Buyer signatory hereto, in its capacity as the Required Holders of the November Notes, hereby consents to the
transactions contemplated hereby (x) agrees the Notes shall constitute Permitted Indebtedness (as defined in the November
Notes) and Permitted Liens (as defined in the November Notes) thereunder, which shall reflect the Ranking, and (y) waives (1)
any right that the holders of the November Notes may have to adjust the Conversion Price (as defined in the November Notes)
pursuant to Section 7 of the November Notes as a result of the issuance of the Notes or any of the Conversion Shares, which
waiver shall be binding on all existing and future holders of the November Notes in accordance with Section 17 of the
November Notes (the “November Notes Anti-Dilution Waiver”) and (2) any prohibition that may exist under
any provision of the Transaction Documents (as defined in the November Securities Purchase Agreement) with respect to the
issuance of the Notes and any of the Conversion Shares and with respect to any cash payments that the Company may make
pursuant to the Notes (the “November Negative Covenants Waiver”). The Company and each November Buyer,
severally, hereby amend the definition of “Stockholder Resolutions” (as defined in the November Securities
Purchase Agreement) to include the Authorized Share Increase Consent (as defined in Section 4(k) below).


 






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2. BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


Each Buyer, severally
and not jointly, represents and warrants to the Company and the Placement Agent with respect to only itself that, as of the date
hereof and as of the Closing Date:


 


(a) Organization;
Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction
of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the
Transaction Documents (as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder.


 


(b) No Public Sale
or Distribution. Such Buyer (i) is acquiring its Note, and (ii) upon conversion of its Note
will acquire the Conversion Shares issuable upon conversion thereof, in each case, for its own account and not with a view towards,
or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant
to sales registered or exempted under the 1933 Act; provided, however, by making the representations herein, such Buyer does not
agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves
the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption
from registration under the 1933 Act. Such Buyer does not presently have any agreement or understanding, directly or indirectly,
with any Person to distribute any of the Securities in violation of applicable securities laws. For purposes of this Agreement,
“Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a
trust, an unincorporated organization, any other entity and any Governmental Entity or any department or agency thereof.


 


(c) Accredited
Investor Status. Such Buyer is an “accredited investor” as that term is defined
in Rule 501(a) of Regulation D.


 


(d) Reliance on
Exemptions. Such Buyer understands that the Securities are being offered and sold
to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws
and that the Company is relying in part upon the truth and accuracy of, and such Buyer’s compliance with, the representations,
warranties, agreements, acknowledgments and understandings of such Buyer set forth herein in order to determine the availability
of such exemptions and the eligibility of such Buyer to acquire the Securities.


 






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(e) Information.
Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer
and its advisors, if any, have been afforded (i) the opportunity to ask questions of and receive answers from the Company concerning
the terms and conditions of the offering of the Notes and the merits and risks of investing in the Notes; and (ii) access to information
about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient
to enable it to evaluate its investment. Neither such inquiries nor any other due diligence investigations conducted by such Buyer
or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right to rely on the Company’s
representations and warranties contained herein. Such Buyer understands that its investment in the Securities involves a high
degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Securities. Such Buyer hereby acknowledges and agrees that it has independently
evaluated the merits of its decision to purchase the Securities, and that (i) the Placement Agent is acting solely as placement
agent in connection with the execution, delivery and performance of the Transaction Documents and is not acting as underwriter
or in any other capacity and is not and shall not be construed as a fiduciary for such Buyer, the Company or any other Person
in connection with the execution, delivery and performance of the Transaction Documents, and (ii) such Buyer has not relied on
the Placement Agent or its officers, directors, employees, attorneys or affiliates with respect to the negotiation, execution
or performance of the Transaction Documents or any representation or warranty made in, in connection with, or as an inducement
to the Transaction Documents.


 


(f) No Governmental
Review. Such Buyer understands that no United States federal or state agency or any other government
or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability
of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


 


(g) Transfer or
Resale. Such Buyer understands that except as provided in Section 4(h) hereof: (i) the Securities
have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold,
assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to the Company (if
requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Securities
to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C)
such Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to
Rule 144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”);
(ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further,
if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom
the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some
other exemption under the 1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company
nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder. 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 and such pledge
of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge
of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant
to this Agreement or any other Transaction Document (as defined in Section 3(b)), including, without limitation, this Section
2(g).


 






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(h) Validity; Enforcement.
This Agreement has been duly and validly authorized, executed and delivered on behalf of such Buyer and shall constitute the legal,
valid and binding obligations of such Buyer enforceable against such Buyer in accordance with their respective terms, except as
such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights
and remedies.


 


(i) No Conflicts.
The execution, delivery and performance by such Buyer of this Agreement and the consummation by such Buyer of the transactions
contemplated hereby will not (i) result in a violation of the organizational documents of such Buyer, or (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Buyer
is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state
securities laws) applicable to such Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights
or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
ability of such Buyer to perform its obligations hereunder.


 


(j) Company’s
Representation and Warranties. Buyer acknowledges and agrees that the Company does not make and has not made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.


 


3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The Company represents
and warrants to each of the Buyers and the Placement Agent that, as of the date hereof and as of the Closing Date:


 


(a) Organization
and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized
and validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite
power and authority to own their properties and to carry on their business as now being conducted and as presently proposed to
be conducted. Each of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in
good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such
qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably
be expected to have a Material Adverse Effect (as defined below). As used in this Agreement, “Material Adverse Effect”
means any material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof),
condition (financial or otherwise) or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions
contemplated hereby or in any of the other Transaction Documents or (iii) the authority or ability of the Company or any of its
Subsidiaries to perform any of their respective obligations under any of the Transaction Documents (as defined below). Other than
the Persons (as defined below) set forth on Schedule 3(a), the Company has no Subsidiaries. “Subsidiaries”
means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding capital stock or holds any equity
or similar interest of such Person, other than MoviePass, or (II) controls or operates all or any part of the business, operations
or administration of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”


 






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(b) Authorization;
Enforcement; Validity. The Company has the requisite corporate power and authority to enter
into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Securities in accordance
with the terms hereof and thereof. Each Subsidiary has the requisite power and authority to enter into and perform its obligations
under the Transaction Documents to which it is a party. The execution and delivery of this Agreement and the other Transaction
Documents by the Company and its Subsidiaries, and the consummation by the Company and its Subsidiaries of the transactions contemplated
hereby and thereby (including, without limitation, the issuance of the Notes and the reservation for issuance and issuance of
the Conversion Shares issuable upon conversion of the Notes) have been duly authorized by the Company’s board of directors
and each of its Subsidiaries’ board of directors or other governing body, as applicable, and other than (i) the filing of
a Form D with the SEC and any other filings as may be required by any state securities agencies, (ii) the 8-K Filing, (iii) a
Listing of Additional Shares Notification with the Principal Market, and (iv) the Stockholder Approval (as defined below) (collectively,
the “Required Filings and Approvals”) no further filing, consent or authorization is required by the Company,
its Subsidiaries, their respective boards of directors or their stockholders or other governing body. This Agreement has been,
and the other Transaction Documents to which it is a party will be prior to the Closing, duly executed and delivered by the Company,
and each constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with
its respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’
rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities
law. Prior to the Closing, the Transaction Documents to which each Subsidiary is a party will be duly executed and delivered by
each such Subsidiary, and shall constitute the legal, valid and binding obligations of each such Subsidiary, enforceable against
each such Subsidiary in accordance with their respective terms, except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution
may be limited by federal or state securities law. “Transaction Documents” means, collectively, this Agreement,
the Notes, the Investor Note, the Security Documents, the Note Purchase Agreements, the Master Netting Agreement, the Voting and
Lockup Agreement, the Irrevocable Transfer Agent Instructions (as defined below) and each of the other agreements and instruments
entered into or delivered by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as
may be amended from time to time.


 


(c) Issuance of
Securities. The issuance of the Notes are duly authorized and upon issuance in accordance with the terms of the Transaction
Documents shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects,
claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively
“Liens”) with respect to the issuance thereof. As of the Closing, the Company shall have reserved from its duly
authorized capital stock not less than 5,244,756 shares of Common Stock for issuance upon conversion of the Notes. Upon issuance
or conversion in accordance with the Notes, the Conversion Shares, when issued, will be validly issued, fully paid and nonassessable
and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders being entitled to all
rights accorded to a holder of Common Stock. Subject to the accuracy of the representations and warranties of the Buyers in this
Agreement, the offer and issuance by the Company of the Securities is exempt from registration under the 1933 Act.


 






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(d) No Conflicts.
The execution, delivery and performance of the Transaction Documents by the Company and its Subsidiaries and the consummation
by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance
of the Notes and the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Notes) will
not (i) result in a violation of the Certificate of Incorporation (as defined below) (including, without limitation, any certificate
of designation contained therein), Bylaws (as defined below), certificate of formation, memorandum of association, articles of
association, bylaws or other organizational documents of the Company or any of its Subsidiaries, or any capital stock or other
securities of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice
or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party,
or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, foreign,
federal and state securities laws and regulations and the rules and regulations of the Nasdaq Capital Market (the “Principal
Market”) and including all applicable foreign, federal and state laws, rules and regulations) applicable to the Company
or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected.


 


(e) Consents.
Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or
registration with (other than a Listing of Additional Shares Notification filed with the Principal Market, filing of a Form D
with the SEC and any other filings as may be required by any state securities agencies), any Governmental Entity (as defined below)
or any regulatory or self-regulatory agency or any other Person, except as set for in Section 1(f) herein, in order for it to
execute, deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case,
in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company
or any Subsidiary is required to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior
to the Closing Date, and neither the Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent
the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated
by the Transaction Documents. Assuming receipt of the Stockholder Approval to the extent required pursuant to Nasdaq Listing Rule
5635 for conversion of the Notes, the Company is not in violation of the requirements of the Principal Market and has no knowledge
of any other facts or circumstances which could reasonably lead to delisting or suspension of the Common Stock in the foreseeable
future. “Governmental Entity” means any nation, state, county, city, town, village, district, or other political
jurisdiction of any nature, federal, state, local, municipal, foreign, or other government, governmental or quasi-governmental
authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal),
multi-national organization or body; or body exercising, or entitled to exercise, any administrative, executive, judicial, legislative,
police, regulatory, or taxing authority or power of any nature or instrumentality of any of the foregoing, including any entity
or enterprise owned or controlled by a government or a public international organization or any of the foregoing.


 


(f) Acknowledgment
Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each
Buyer is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated hereby and thereby and that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii)
an “affiliate” (as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial
owner” of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange
Act of 1934, as amended (the “1934 Act”)). The Company further acknowledges that no Buyer is acting as a financial
advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives or agents
in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such
Buyer’s purchase of the Securities. The Company further represents to each Buyer that the Company’s and each Subsidiary’s
decision to enter into the Transaction Documents to which it is a party has been based solely on the independent evaluation by
the Company, each Subsidiary and their respective representatives.


 






    	 	9	 



     


    

 


(g) No General
Solicitation; Placement Agent Fees. Neither the Company, nor any of its Subsidiaries or affiliates,
nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment
of any placement agent fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer
or its investment advisor) relating to or arising out of the transactions contemplated hereby, including, without limitation,
placement agent fees payable to the Placement Agent in connection with the sale of the Securities. The fees and expenses of the
Placement Agent and any other financial advisors to be paid by the Company or any of its Subsidiaries are as set forth on Schedule
3(g) attached hereto. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including,
without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim. The Company acknowledges
that it has engaged the Placement Agent in connection with the sale of the Securities. Other than the Placement Agent or as set
forth on Schedule 3(g), neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection
with the offer or sale of the Securities.


 


(h) No Integrated
Offering. Except as set forth in Schedule 3(h), none of the Company, its Subsidiaries or any
of their affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security
or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any of the
Securities under the 1933 Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities
to require approval of stockholders of the Company for purposes of the 1933 Act or under any applicable stockholder approval provisions,
including, without limitation, under the rules and regulations of the Principal Market. Except as set forth in Schedule 3(h),
none of the Company, its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that
would require registration of the issuance of any of the Securities under the 1933 Act (other than pursuant to any other registration
rights agreement among the Company and any of the Buyers) or cause the offering of any of the Securities to be integrated with
other offerings of securities of the Company.


 


(i) Dilutive Effect.
The Company understands and acknowledges that the number of Conversion Shares will increase in certain circumstances. The Company
further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of the Notes in accordance with
this Agreement and the Notes is, in each case, absolute and unconditional regardless of the dilutive effect that such issuance
may have on the ownership interests of other stockholders of the Company.


 


(j) Application
of Takeover Protections; Rights Agreement. The Company and its board of directors have taken
all necessary action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business
combination, poison pill (including, without limitation, any distribution under a rights agreement), stockholder rights plan or
other similar anti-takeover provision under the Certificate of Incorporation, Bylaws or other organizational documents or the
laws of the jurisdiction of its incorporation or otherwise which is or could become applicable to any Buyer as a result of the
transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and
any Buyer’s ownership of the Securities. The Company and its board of directors have taken all necessary action, if any,
in order to render inapplicable any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership
of shares of Common Stock or a change in control of the Company or any of its Subsidiaries.


 






    	 	10	 



     


    

 


(k) SEC Documents;
Financial Statements. During the two (2) years prior to the date hereof, the Company has timely
filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC
pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof, including without
limitation, Current Reports on Form 8-K filed by the Company with the SEC whether required to be filed or not (but excluding Item
7.01 thereunder), and all exhibits and appendices included therein (other than Exhibits 99.1 to Form 8-K) and financial statements,
notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC
Documents”). The Company has delivered or has made available to the Buyers or their respective representatives true,
correct and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC
promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC,
contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their
respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects with
applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of
the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles (“GAAP”),
consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to
normal year-end audit adjustments which will not be material, either individually or in the aggregate). No other information provided
by or on behalf of the Company to any of the Buyers which is not included in the SEC Documents (including, without limitation,
information referred to in Section 2(e) of this Agreement or in the disclosure schedules to this Agreement) contains any
untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not
misleading, in the light of the circumstance under which they are or were made. The Company is not currently contemplating to
restate any of the financial statements (including, without limitation, any notes or any letter of the independent accountants
of the Company with respect thereto) included in the SEC Documents (the “Financial Statements”), nor is the
Company currently aware of facts or circumstances which would require the Company to restate any of the Financial Statements,
in each case, in order for any of the Financials Statements to be in compliance with GAAP and the rules and regulations of the
SEC. The Company has not been informed by its independent accountants that they recommend that the Company restate any of the
Financial Statements or that there is any need for the Company to restate any of the Financial Statements.


 


(l) Absence of
Certain Changes. Except as set forth in Schedule 3(l), since the date of the Company’s
most recent audited financial statements contained in a Form 10-K, there has been no material adverse change and no material adverse
development in the business, assets, liabilities, properties, operations (including results thereof), condition (financial or
otherwise) or prospects of the Company or any of its Subsidiaries. Since the date of the Company’s most recent audited financial
statements contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii)
sold any assets, individually or in the aggregate, outside of the ordinary course of business or (iii) except as disclosed in
the SEC Documents, made any capital expenditures, individually or in the aggregate, outside of the ordinary course of business.
Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating
to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have
any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings
or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries, individually
and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to
occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3(l), “Insolvent”
means, (i) with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the
Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’
total Indebtedness (as defined below), (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend
to incur or believe that they will incur debts that would be beyond their ability to pay as such debts mature; and (ii) with respect
to the Company and each Subsidiary, individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s
(as the case may be) assets is less than the amount required to pay its respective total Indebtedness, (B) the Company or such
Subsidiary (as the case may be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured or (C) the Company or such Subsidiary (as the case may be) intends to
incur or believes that it will incur debts that would be beyond its respective ability to pay as such debts mature. Neither the
Company nor any of its Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business
or in any transaction, for which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small
capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.


 






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(m) No Undisclosed
Events, Liabilities, Developments or Circumstances. Except as set forth in the SEC Documents,
no event, liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect
to the Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations
(including results thereof) or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under
applicable securities laws on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by the
Company of its Common Stock and which has not been publicly announced, (ii) could have a material adverse effect on any Buyer’s
investment hereunder or (iii) could have a Material Adverse Effect.


 


(n) Conduct of
Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation
of any term of or in default under its Certificate of Incorporation, any certificate of designation, preferences or rights of
any other outstanding series of preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter,
certificate of formation, memorandum of association, articles of association, Certificate of Incorporation or certificate of incorporation
or bylaws, respectively. Except as set forth in the SEC Documents, neither the Company nor any of its Subsidiaries is in violation
of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries,
and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in
all cases for possible violations which could not, individually or in the aggregate, have a Material Adverse Effect. The Company
is not in violation of any of the rules, regulations or requirements of the Principal Market and has no knowledge of any facts
or circumstances that could reasonably lead to delisting or suspension of the Common Stock by the Principal Market in the foreseeable
future. During the two years prior to the date hereof, (i) the Common Stock has been listed or designated for quotation on the
Principal Market, (ii) trading in the Common Stock has not been suspended by the SEC or the Principal Market and (iii) the Company
has received no communication, written or oral, from the SEC or the Principal Market regarding the suspension or delisting of
the Common Stock from the Principal Market following its regaining of compliance with the continued listing criteria of the Principal
Market as indicated in a compliance letter from the Nasdaq Stock Market on November 28, 2016. The Company and each of its Subsidiaries
possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess such certificates, authorizations or permits would not have, individually
or in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of proceedings
relating to the revocation or modification of any such certificate, authorization or permit. There is no agreement, commitment,
judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of its
Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any
business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries
or the conduct of business by the Company or any of its Subsidiaries as currently conducted other than such effects, individually
or in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company
or any of its Subsidiaries.


 


(o) Foreign Corrupt
Practices. Neither the Company, the Company’s subsidiary or any director, officer, agent,
employee, nor any other person acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”)
have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption
laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given,
promised to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official
capacity for any Governmental Entity to any political party or official thereof or to any candidate for political office (individually
and collectively, a “Government Official”) or to any person under circumstances where such Company Affiliate
knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised,
directly or indirectly, to any Government Official, for the purpose of:


 


(i) (A) influencing
any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do or omit
to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official
to influence or affect any act or decision of any Governmental Entity, or


 






    	 	12	 



     


    

 


(ii) assisting
the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.


 


(p) Sarbanes-Oxley
Act. The Company and each Subsidiary is in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.


 


(q) Transactions
With Affiliates. Except as set forth in Schedule 3(q), since January 1, 2015, no current or
former employee, partner, director, officer or stockholder (direct or indirect) of the Company or its Subsidiaries, or any associate,
or, to the knowledge of the Company, any affiliate of any thereof, or any relative with a relationship no more remote than first
cousin of any of the foregoing, is presently, or has ever been, (i) a party to any transaction with the Company or its Subsidiaries
(including any contract, agreement or other arrangement providing for the furnishing of services by, or rental of real or personal
property from, or otherwise requiring payments to, any such director, officer or stockholder or such associate or affiliate or
relative Subsidiaries (other than for ordinary course services as employees, officers or directors of the Company or any of its
Subsidiaries)) or (ii) the direct or indirect owner of an interest in any corporation, firm, association or business organization
which is a competitor, supplier or customer of the Company or its Subsidiaries (except for a passive investment (direct or indirect)
in less than 5% of the common stock of a company whose securities are traded on or quoted through an Eligible Market (as defined
in the Notes)), nor does any such Person receive income from any source other than the Company or its Subsidiaries which relates
to the business of the Company or its Subsidiaries or should properly accrue to the Company or its Subsidiaries. No employee,
officer, stockholder or director of the Company or any of its Subsidiaries or member of his or her immediate family is indebted
to the Company or its Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries indebted (or committed to
make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered, (ii) reimbursement
for reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee benefits made generally available
to all employees or executives (including stock option agreements outstanding under any stock option plan approved by the Board
of Directors of the Company).


 


(r) Equity Capitalization.



 


(i) Definitions:


 


(A) “Common
Stock” means (x) the Company’s shares of common stock, $0.01 par value per share, and (y) any capital stock
into which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(B) “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.01 par value per share, the terms of which may be
designated by the board of directors of the Company in a certificate of designations and (y) any capital stock into which such
preferred stock shall have been changed or any share capital resulting from a reclassification of such preferred stock (other than
a conversion of such preferred stock into Common Stock in accordance with the terms of such certificate of designations).


 






    	 	13	 



     


    

 


(ii) Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) One Hundred
Million (100,000,000) shares of Common Stock, of which, 23,981,253 are issued and outstanding as of the date hereof and 34,409,961
of which are reserved for issuance pursuant to the Equity Incentive Plan (as defined in the November Securities Purchase Agreement),
the Company’s outstanding Convertible Securities (as defined in the November Securities Purchase Agreement) (not including
the Exchange Warrant Shares), in each case exercisable or exchangeable for, or convertible into, shares of Common Stock and a reserve
of Common Stock to be issued to an institutional investor in exchange for certain waivers, and (B) Two Million (2,000,000) shares
of Preferred Stock, none of which are issued and outstanding. No shares of Common Stock are held in the treasury of the Company.
In addition to the foregoing, there are outstanding Series A Warrants for the purchase of an aggregate 9,230,769 shares of Common
Stock issued to investors in connection with the offering of the Company’s Series A and Series B units, an Exchange Warrant
for the purchase of 10,000 shares of Common Stock issued to an institutional investor and a subordinated convertible promissory
note that was issued to MoviePass on December 11, 2017 that may be converted into 4,000,001 shares of Common Stock. The board of
directors of the Company (and, where applicable, the compensation committee thereof) have also authorized the issuance of the following
shares of Common Stock which have not been issued as of the date hereof: (I) 40,000 Form S-8 (“S-8”) registered
shares per year to each independent director of the Company (120,000 shares in total), which shall be subject to an 18 month lockup
agreement, a grant of 20,000 shares of Common Stock to each independent director for services rendered during the first two quarters
of 2017 and a grant of 10,000 shares of Common Stock to each independent director for services rendered and to be rendered during
the third and fourth quarters of 2017, all of which shall be subject to an 18 month lockup agreement, (II) 300,000 unregistered
shares to the Company’s Chief Innovation Officer, which shall be subject to an 18 month lockup agreement, (III) 150,000 S-8
registered shares to an employee of Zone, which shall be subject to an 18 month lockup agreement, (IV) 686,333 unregistered shares
to independent contractors of the Company for services rendered or to be rendered, 478,000 of which shall be subject to an 18 month
lockup agreement and 50,000 of which shall be subject to a 24 month lockup agreement, (V) 250,000 shares of Common Stock authorized
by the Board of Directors for issuance to various individuals, at the discretion of the Chief Executive Officer, which shall be
subject to an 18 month lockup agreement, (VI) 750,000 unregistered shares to each of Ted Farnsworth (Chief Executive Officer and
Chairman of the board) and Muralikrishna Gadiyaram (a non-independent director and consultant of the Company), 250,000 of which
shall be subject to a 24 month lock-up agreement and 500,000 of which shall be subject to an 18 month lockup agreement, (VII) 237,500
unregistered shares to Palladium Capital Advisors, LLC (“Palladium”) as a financial advisory fee in connection
with the transactions contemplated by the MoviePass SPA, as amended, an additional 166,667 unregistered shares to Palladium as
a result of the exercise by the Company of its right to purchase additional shares of MoviePass pursuant to that certain Investment
Option Agreement, dated as of October 11, 2017, in accordance with the placement agent agreement between Palladium and the Company,
and shares of Common Stock issuable upon the exercise of warrants for the purchase of 390,819 shares of Common Stock that have
been issued to Palladium (VIII) 2,053,255 shares of Common Stock which may be issued to Ted Farnsworth (Chief Executive Officer
and Chairman of the board) pursuant to his employment agreement, and subject to shareholder approval.


 


(iii) Valid
Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance
will be, validly issued and are fully paid and nonassessable. Schedule 3(r)(iii) sets forth the number of shares of Common
Stock that are (A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes) and (B) that
are, as of the date hereof, owned by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated
based on the assumption that only officers, directors and holders of at least 10% of the Company’s issued and outstanding
Common Stock are “affiliates” without conceding that any such Persons are “affiliates” for purposes of
federal securities laws) of the Company or any of its Subsidiaries.


 






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(iv) Existing
Securities; Obligations. Except as disclosed in Schedule 3(r)(iv): (A) none of the Company’s or any Subsidiary’s
shares, interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered or permitted by
the Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares,
interests or capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements
by which the Company or any of its Subsidiaries is or may become bound to issue additional shares, interests or capital stock of
the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or
capital stock of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements under which the Company or
any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act; (D) there are no outstanding
securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries; (E) there are no securities or instruments containing anti-dilution
or similar provisions that will be triggered by the issuance of the Securities; and (F) neither the Company nor any Subsidiary
has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.


 


(v) Organizational
Documents. The Company has furnished to the Buyers true, correct and complete copies of the Company’s Certificate of
Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the
Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all
Convertible Securities and the material rights of the holders thereof in respect thereto.


 


(s) Indebtedness
and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed
on Schedule 3(s), has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements,
documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its
Subsidiaries is or may become bound, (ii) is a party to any contract, agreement or instrument, the violation of which, or default
under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material
Adverse Effect, (iii) has any financing statements securing obligations in any amounts filed in connection with the Company or
any of its Subsidiaries; (iv) is in violation of any term of, or in default under, any contract, agreement or instrument relating
to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material
Adverse Effect, or (v) is a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which,
in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect. Neither the Company nor
any of its Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed
in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective
businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. For purposes of this
Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money,
(B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation,
“capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of business
consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and
other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations
so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising
under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property
or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any
leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified
as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including
accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or
become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations
of others of the kinds referred to in clauses (A) through (G) above; and (y) “Contingent Obligation” means,
as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness,
lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability,
or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged,
or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole
or in part) against loss with respect thereto.


 






    	 	15	 



     


    

 


(t) Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public
board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’
officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, except as set forth in
Schedule 3(t). No director, officer or employee of the Company or any of its subsidiaries has willfully violated 18 U.S.C.
§1519 or engaged in spoliation in reasonable anticipation of litigation. Without limitation of the foregoing, there has not
been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company,
any of its Subsidiaries or any current or former director or officer of the Company or any of its Subsidiaries. The SEC has not
issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the
1933 Act or the 1934 Act. Neither the Company nor any of its Subsidiaries is subject to any order, writ, judgment, injunction,
decree, determination or award of any Governmental Entity.


 


(u) Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company
and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or
applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.


 


(v) Employee Relations.
Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any member of a union.
The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer (as defined
in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has notified the
Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such
officer’s employment with the Company or any such Subsidiary. To the Company’s knowledge, no executive officer or
other key employee of the Company or any of its Subsidiaries is, or is now expected to be, in violation of any material term of
any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant, and the continued employment of each such executive officer or other key employee
(as the case may be) does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing
matters. The Company and its Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting
labor, employment and employment practices and benefits, terms and conditions of employment and wages and hours, except where
failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.


 


(w) Title.


 


(i) Real
Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property, facilities
or other interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”)
owned by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject
to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for (a)
Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or anticipated
use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.


 






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(ii) Fixtures
and Equipment. Each of the Company and its Subsidiaries (as applicable) has good title to, or a valid leasehold interest in,
the tangible personal property, equipment, improvements, fixtures, and other personal property and appurtenances that are used
by the Company or its Subsidiary in connection with the conduct of its business (the “Fixtures and Equipment”).
The Fixtures and Equipment are structurally sound, are in good operating condition and repair, are adequate for the uses to which
they are being put, are not in need of maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient
for the conduct of the Company’s and/or its Subsidiaries’ businesses (as applicable) in the manner as conducted prior
to the Closing. Each of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear of all Liens except
for (a) liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present
or anticipated use of the property subject thereto.


 


(x) Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses
to use all trademarks, trade names, service marks, service mark registrations, service names, original works of authorship, patents,
patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual
property rights and all applications and registrations therefor (“Intellectual Property Rights”) necessary
to conduct their respective businesses as now conducted. None of the Company or its Subsidiaries owns any patents. Except as set
forth in Schedule 3(x)(ii), none of the Company’s Intellectual Property Rights have expired or terminated or have been abandoned
or are expected to expire or terminate or are expected to be abandoned, within three years from the date of this Agreement. The
Company does not have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual Property Rights of
others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries,
being threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property Rights. Neither the Company
nor any of its Subsidiaries is aware of any facts or circumstances that could reasonably be expected to give rise to any of the
foregoing infringements or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights.


 


(y) Environmental
Laws. (i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental
Laws (as defined below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license
or approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could be reasonably expected to
have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all
federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating
to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances
or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations,
codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans
or regulations issued, entered, promulgated or approved thereunder.


 






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(ii) No Hazardous
Materials:


 


(A) have
been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries in violation of any Environmental
Laws; or


 


(B) to
the Company’s knowledge, are present on, over, beneath, in or upon an Real Property or any portion thereof in quantities
that would constitute a violation of any Environmental Laws. To the Company’s knowledge, no prior use by the Company or any
of its Subsidiaries of any Real Property has occurred that violates any Environmental Laws, which violation would have a material
adverse effect on the business of the Company or any of its Subsidiaries.


 


(iii) Neither
the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed of
or otherwise located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and
polychlorinated biphenyls.


 


(iv) None
of the Real Property are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related
Liens.


 


(z) Subsidiary
Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject
to limitations imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries
as owned by the Company or such Subsidiary.


 


(aa) Tax Status.
Except as would not have a Material Adverse Effect, the Company and each of its Subsidiaries (i) has timely made or filed all
foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it
is subject, (ii) has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii) has set aside
on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such claim. The Company is not operated
in such a manner as to qualify as a passive foreign investment company, as defined in Section 1297 of the Internal Revenue Code
of 1986, as amended (the “Code”).


 


(bb) Internal Accounting
and Disclosure Controls. The Company and each of its Subsidiaries maintains internal control
over financial reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that is effective to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles, including that (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities
is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability
for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action
is taken with respect to any difference. The Company maintains disclosure controls and procedures (as such term is defined in
Rule 13a-15(e) under the 1934 Act) that are effective in ensuring that information required to be disclosed by the Company in
the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods
specified in the rules and forms of the SEC, including, without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated
to the Company’s management, including its principal executive officer or officers and its principal financial officer or
officers, as appropriate, to allow timely decisions regarding required disclosure. Except as disclosed in the Company’s
Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2016, neither the Company nor any of its Subsidiaries
has received any notice or correspondence from any accountant, Governmental Entity or other Person relating to any potential material
weakness or significant deficiency in any part of the internal controls over financial reporting (as such term is defined in Rule
13a-15(f) of the Exchange Act) of the Company or any of its Subsidiaries, for which the Company implemented the remediation actions
set forth in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016.


 






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(cc) Off Balance
Sheet Arrangements. There is no transaction, arrangement, or other relationship between the
Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by
the Company in its 1934 Act filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse
Effect.


 


(dd) Investment
Company Status. The Company is not, and upon consummation of the sale of the Securities will
not be, an “investment company,” an affiliate of an “investment company,” a company controlled by an “investment
company” or an “affiliated person” of, or “promoter” or “principal underwriter” for,
an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.


 


(ee) Acknowledgement
Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that
(i) following the public disclosure of the transactions contemplated by the Transaction Documents, in accordance with the terms
thereof, none of the Buyers have been asked by the Company or any of its Subsidiaries to agree, nor has any Buyer agreed with
the Company or any of its Subsidiaries, to desist from effecting any transactions in or with respect to (including, without limitation,
purchasing or selling, long and/or short) any securities of the Company, or “derivative” securities based on securities
issued by the Company or to hold any of the Securities for any specified term; (ii) any Buyer, and counterparties in “derivative”
transactions to which any such Buyer is a party, directly or indirectly, presently may have a “short” position in
the Common Stock which was established prior to such Buyer’s knowledge of the transactions contemplated by the Transaction
Documents; and (iii) each Buyer shall not be deemed to have any affiliation with or control over any arm’s length counterparty
in any “derivative” transaction. The Company further understands and acknowledges that following the public disclosure
of the transactions contemplated by the Transaction Documents pursuant to the 8-K Filing (as defined below) one or more Buyers
may engage in hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable
shares of Common Stock) at various times during the period that the Securities are outstanding, including, without limitation,
during the periods that the value and/or number of the Conversion Shares deliverable with respect to the Notes are being determined
and such hedging and/or trading activities, if any, can reduce the value of the existing stockholders’ equity interest in
the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that
such aforementioned hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable
shares of Common Stock) do not constitute a breach of this Agreement, the Notes or any other Transaction Document or any of the
documents executed in connection herewith or therewith.


 


(ff) Manipulation
of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge
of the Company, no Person acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result
in the stabilization or manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the
sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of,
any of the Securities (other than the Placement Agent or as identified on Schedule 3(g)), (iii) paid or agreed to pay to any Person
any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries or (iv) paid
or agreed to pay any Person for research services with respect to any securities of the Company or any of its Subsidiaries.


 


(gg) U.S. Real
Property Holding Corporation. Neither the Company nor any of its Subsidiaries is,
or has ever been, and so long as any of the Securities are held by any of the Buyers, shall become, a U.S. real property holding
corporation within the meaning of Section 897 of the Code, and the Company and each Subsidiary shall so certify upon any
Buyer’s request.


 






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(hh) Transfer Taxes.
On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be paid in connection
with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully paid
or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


(ii) Bank Holding
Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls,
directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent
(25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.
Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies
of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


(jj) Shell Company
Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule
144(i).


 


(kk) Illegal or
Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries
nor, to the best of the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers,
directors, employees, agents or other representatives of the Company or any of its Subsidiaries or any other business entity or
enterprise with which the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made
or authorized any payment, contribution or gift of money, property, or services, whether or not in contravention of applicable
law, (i) as a kickback or bribe to any Person or (ii) to any political organization, or the holder of or any aspirant to any elective
or appointive public office except for personal political contributions not involving the direct or indirect use of funds of the
Company or any of its Subsidiaries.


 


(ll) Money Laundering.
The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001 and all
other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws, regulations
and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited,
to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in
31 CFR, Subtitle B, Chapter V.


 


(mm) Management.
Except as set forth in Schedule 3(mm) hereto, during the past five year period, no current or former officer or director
or, to the knowledge of the Company, no current ten percent (10%) or greater stockholder of the Company or any of its Subsidiaries
has been the subject of:


 


(i) a petition
under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal agent or similar
officer for such Person, or any partnership in which such person was a general partner at or within two years before the filing
of such petition or such appointment, or any corporation or business association of which such person was an executive officer
at or within two years before the time of the filing of such petition or such appointment;


 






    	 	20	 



     


    

 


(ii) a conviction
in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do not relate to
driving while intoxicated or driving under the influence);


 


(iii) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining any such person from, or otherwise limiting, the following activities:


 


(1) Acting as
a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction
merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated person of any of
the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or
employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct
or practice in connection with such activity;


 


(2) Engaging
in any particular type of business practice; or


 


(3) Engaging
in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of securities
laws or commodities laws;


 


(iv) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise limiting
for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph,
or to be associated with persons engaged in any such activity;


 


(v) a finding
by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities law, regulation
or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently reversed,
suspended or vacated; or


 


(vi) a finding
by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any federal
commodities law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or vacated.


 


(nn) Stock Option
Plans. The Company has one equity incentive plan from which up to 1,125,000 shares of Common
Stock (subject to proportionate adjustment for any stock split or combination or similar recapitalization event) may be granted
to eligible recipients pursuant to awards thereunder, namely the Helios and Matheson Analytics Inc. 2014 Equity Incentive Plan
(as amended, the “Equity Incentive Plan”).


 


(oo) No Disagreements
with Accountants and Lawyers. There are no material disagreements of any kind presently
existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently
employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect
the Company’s ability to perform any of its obligations under any of the Transaction Documents. In addition, on or prior
to the date hereof, the Company has no reason to believe that it will need to restate any such financial statements or any part
thereof.


 






    	 	21	 



     


    

 


(pp) No Disqualification
Events. With respect to Securities to be offered and sold hereunder in reliance on Rule
506(b) under the 1933 Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated
issuer, any director, executive officer, other officer of the Company participating in the offering contemplated hereby, any beneficial
owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor
any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with the Company in any capacity at the time of
sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject
to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “Disqualification
Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent
applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Buyers a copy of any disclosures provided
thereunder.


 


(qq) Other Covered
Persons. The Company is not aware of any Person (other than the Placement Agent or as described
on Schedule 3(g)) that has been or will be paid (directly or indirectly) remuneration for solicitation of Buyers or potential
purchasers in connection with the sale of any Regulation D Securities.


 


(rr) No Additional
Agreements. The Company does not have any agreement or understanding with any Buyer with respect
to the transactions contemplated by the Transaction Documents other than as specified in the Transaction Documents.


 


(ss) Public Utility
Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,”
or an “affiliate” of a “holding company,” as such terms are defined in the Public Utility Holding Act
of 2005.


 


(tt) Federal Power
Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public
utility” under the Federal Power Act, as amended.


 


(uu) Ranking of
Notes. No Indebtedness of the Company, at the Closing, will be senior to, or pari passu
with, the Notes in right of payment, whether with respect to payment or redemptions, interest, damages, upon liquidation or dissolution
or otherwise, other than the August Notes and the November Notes (except with respect to the Collateral (as defined in the Series
B-1 Notes) securing the Restricted Principal under the Series B-1 Notes).


 


(vv) Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents
or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information
concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement
and the other Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing representations
in effecting transactions in securities of the Company. Each press release issued by the Company or any of its Subsidiaries during
the twelve (12) months preceding the date of this Agreement did not at the time of release contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading. To the Company’s knowledge, no event or circumstance
has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties,
liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable
law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has
not been so publicly disclosed. The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.


 






    	 	22	 



     


    

 


4. COVENANTS.


 


(a) Best Efforts.
Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by it as
provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 7 of this Agreement.


 


(b) Form D and
Blue Sky. The Company shall file a Form D with respect to the Securities as required under Regulation
D and to provide a copy thereof to each Buyer promptly after such filing. The Company shall, on or before the Closing Date, take
such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities
for sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of
the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action
so taken to the Buyers on or prior to the Closing Date. Without limiting any other obligation of the Company under this Agreement,
the Company shall timely make all filings and reports relating to the offer and sale of the Securities required under all applicable
securities laws (including, without limitation, all applicable federal securities laws and all applicable “Blue Sky”
laws), and the Company shall comply with all applicable foreign, federal, state and local laws, statutes, rules, regulations and
the like relating to the offering and sale of the Securities to the Buyers.


 


(c) Reporting Status.
Until the date on which the Buyers shall have sold all of the Underlying Securities (the “Reporting Period”),
the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not
terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations
thereunder would no longer require or otherwise permit such termination. The Company shall use reasonable best efforts to maintain
its eligibility to register the Underlying Securities for resale by the Buyers on Form S-3, provided that Buyer acknowledges that
such eligibility depends on the Company’s continued listing on the Principal Market.


 


(d) Use of Proceeds.
The Company shall use the gross proceeds (less reasonable fees and expenses of counsel to the Company
and the reasonable fees and expenses of the Placement Agent) from the sale of the Securities as set forth on Schedule 4(d) and
for general corporate purposes, but not, directly or indirectly, for, except as set forth on Schedule 4(d) (or as otherwise required
under the November Notes, August Notes or Exchange Warrants): (i) the satisfaction of any indebtedness of the Company or any of
its Subsidiaries, (ii) the redemption or repurchase of any securities of the Company or any of its Subsidiaries, or (iii) the settlement
of any outstanding litigation other than pending litigation disclosed on Schedule 3(t).


 


(e) Financial Information.
The Company agrees to send the following to each holder of Notes (each, an “Investor”) during the Reporting
Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system,
within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports
on Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements
and/or cash flow statements for any period other than annual, any Current Reports on Form 8-K and any registration statements
(other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with the SEC
through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire or Globe Newswire),
on the same day as the release thereof, facsimile or PDF copies of all press releases issued by the Company or any of its Subsidiaries
and (iii) unless the following are filed with the SEC through EDGAR, copies of any notices and other information made available
or given to the stockholders of the Company generally, contemporaneously with the making available or giving thereof to the stockholders.


 






    	 	23	 



     


    

 


(f) Listing.
The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Underlying Securities
upon each national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or designated
for quotation (as the case may be) (subject to official notice of issuance) and shall maintain such listing or designation for
quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms of the Transaction Documents
on such national securities exchange or automated quotation system. The Company shall maintain the Common Stock’s listing
or authorization for quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the NYSE American, the
Nasdaq Global Market or the Nasdaq Global Select Market (each, an “Eligible Market”). Neither the Company nor
any of its Subsidiaries shall take any action which could be reasonably expected to result in the delisting or suspension of the
Common Stock on an Eligible Market. The Company shall pay all fees and expenses in connection with satisfying its obligations
under this Section 4(f). “Underlying Securities” means the (i) the Conversion Shares and (ii) any capital stock
of the Company issued or issuable with respect to the Notes, including, without limitation, (1) as a result of any stock split,
stock dividend, recapitalization, exchange or similar event or otherwise and (2) shares of capital stock of the Company into which
the shares of Common Stock are converted or exchanged and shares of capital stock of a Successor Entity (as defined in the Notes)
into which the shares of Common Stock are converted or exchanged, in each case, without regard to any limitations on conversion
of the Notes.


 


(g) Fees.
The Company shall reimburse Hudson Bay Master Fund Ltd. (the “Hudson Bay”) for all reasonable costs and expenses
(whether the transaction is consummated or not) incurred by it or its affiliates in connection with the structuring, documentation,
negotiation and closing of the transactions contemplated by the Transaction Documents (including, without limitation, as applicable,
all reasonable legal fees of outside counsel and disbursements of Kelley Drye & Warren LLP, counsel to Hudson Bay, any other
reasonable fees and expenses in connection with the structuring, documentation, negotiation and closing of the transactions contemplated
by the Transaction Documents and due diligence and regulatory filings in connection therewith) (the “Transaction Expenses”)
and shall be withheld by Hudson Bay from its Purchase Price at the Closing; provided, that the Company shall promptly reimburse
Kelley Drye & Warren LLP on demand for all Transaction Expenses not so reimbursed through such withholding at the Closing.
The Company shall be responsible for the payment of any placement agent fees, financial advisory fees, transfer agent fees, DTC
(as defined below) fees or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising out
of the transactions contemplated hereby (including, without limitation, any fees or commissions payable to the Placement Agent,
who is the Company’s only placement agent in connection with the transactions contemplated by this Agreement). The Company
shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’
fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise set forth
in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities
to the Buyers.


 


(h) Pledge of Securities.
Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that the Securities
may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement that is secured
by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder,
and no Investor effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise
make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including, without limitation,
Section 2(g) hereof; provided that an Investor and its pledgee shall be required to comply with the provisions of Section
2(g) hereof in order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees to execute
and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities
to such pledgee by a Buyer.


 






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(i) Disclosure
of Transactions and Other Material Information.


 


(i) Disclosure
of Transaction. On or before 9:30 a.m., New York time, on the date of this Agreement, the Company shall file a Current
Report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form
required by the 1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement (and
all schedules to this Agreement), the form of Notes, the form of Investor Note, the form of Guaranty, the form of Voting and Lockup
Agreement, the form of Master Netting Agreement and the form of Note Purchase Agreement) (including all attachments, the “8-K
Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information
(if any) provided to any of the Buyers by the Company or any of its Subsidiaries or any of their respective officers, directors,
employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon
the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate.


 


(ii) Limitations
on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective
officers, directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company
or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may be
granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants, or any
of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries, or any of
its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of such
Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right to make
a public disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material, non-public
information, as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their respective
officers, directors, employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries, or any of
its or their respective officers, directors, employees, affiliates, stockholders or agents, for any such disclosure. To the extent
that the Company delivers any material, non-public information to a Buyer without such Buyer’s consent, the Company hereby
covenants and agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty not to trade on the
basis of, such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries nor any Buyer
shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however,
the Company shall be entitled, without the prior approval of any Buyer, to make any press release or other public disclosure with
respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required
by applicable law and regulations (provided that in the case of clause (i) each Buyer shall be consulted by the Company in connection
with any such press release or other public disclosure prior to its release). Without the prior written consent of the applicable
Buyer (which may be granted or withheld in such Buyer’s sole discretion), the Company shall not (and shall cause each of
its Subsidiaries and affiliates to not) disclose the name of such Buyer in any filing, announcement, release or otherwise, except
as such disclosure may be required by applicable law including, without limitation, in the 8-K Filing. Notwithstanding anything
contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly
acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written
definitive and binding agreement executed by the Company and such particular Buyer (it being understood and agreed that no Buyer
may bind any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis
of, any material, non-public information regarding the Company or any of its Subsidiaries. Each Buyer further acknowledges that
the Company shall not be deemed to violate this Section 4(i) by disclosing the name of any Buyer that beneficially owns more than
4.99% of the Common Stock of the Company in accordance with the disclosure made by such Buyer in any Schedule 13D or Schedule 13G
filed by such Buyer with the SEC.


 






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(iii) Other
Confidential Information. Disclosure Failures; Disclosure Delay Payments. In addition to other remedies set forth in this Section
4(i), and without limiting anything set forth in any other Transaction Document, at any time after the Closing Date if the Company,
any of its Subsidiaries, or any of their respective officers, directors, employees or agents, provides any Buyer with material
non-public information relating to the Company or any of its Subsidiaries (each, the “Confidential Information”),
the Company shall, on or prior to the applicable Required Disclosure Date (as defined below), publicly disclose such Confidential
Information on a Current Report on Form 8-K or otherwise (each, a “Disclosure”). From and after such Disclosure,
the Company shall have disclosed all Confidential Information provided to such Buyer by the Company or any of its Subsidiaries
or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon such Disclosure, the Company acknowledges and agrees that any and all confidentiality or
similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their
respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates,
on the other hand, shall terminate. In the event that the Company fails to effect such Disclosure on or prior to the Required Disclosure
Date and such Buyer shall have possessed Confidential Information for at least ten (10) consecutive Trading Days (each, a “Disclosure
Failure”), then, as partial relief for the damages to such Buyer by reason of any such delay in, or reduction of, its
ability to buy or sell shares of Common Stock after such Required Disclosure Date (which remedy shall not be exclusive of any other
remedies available at law or in equity), the Company shall pay to such Buyer an amount in cash equal to the greater of (I) two
percent (2%) of the aggregate Purchase Price and (II) the applicable Disclosure Restitution Amount, on each of the following dates
(each, a “Disclosure Delay Payment Date”): (i) on the date of such Disclosure Failure and (ii) on every thirty
(30) day anniversary such Disclosure Failure until the earlier of (x) the date such Disclosure Failure is cured and (y) such time
as all such non-public information provided to such Buyer shall cease to be Confidential Information (as evidenced by a certificate,
duly executed by an authorized officer of the Company to the foregoing effect) (such earlier date, as applicable, a “Disclosure
Cure Date”). Following the initial Disclosure Delay Payment for any particular Disclosure Failure, without limiting the
foregoing, if a Disclosure Cure Date occurs prior to any thirty (30) day anniversary of such Disclosure Failure, then such Disclosure
Delay Payment (prorated for such partial month) shall be made on the third (3rd) Business Day after such Disclosure Cure Date.
The payments to which an Investor shall be entitled pursuant to this Section 4(l)(iii) are referred to herein as “Disclosure
Delay Payments.” In the event the Company fails to make Disclosure Delay Payments in a timely manner in accordance with
the foregoing, such Disclosure Delay Payments shall bear interest at the rate of two percent (2%) per month (prorated for partial
months) until paid in full.


 


(iv) For
the purpose of this Agreement the following definitions shall apply:


 


(1) “Disclosure
Failure Market Price” means, as of any Disclosure Delay Payment Date, the price computed as the quotient of (I) the sum
of the five (5) highest VWAPs (as defined in the Notes) of the Common Stock during the applicable Disclosure Restitution Period
(as defined below), divided by (II) five (5) (such period, the “Disclosure Failure Measuring Period”). All such
determinations to be appropriately adjusted for any share dividend, share split, share combination, reclassification or similar
transaction that proportionately decreases or increases the Common Stock during such Disclosure Failure Measuring Period.


 






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(2) “Disclosure
Restitution Amount” means, as of any Disclosure Delay Payment Date, the product of (x) difference of (I) the Disclosure
Failure Market Price less (II) the lowest purchase price, per share of Common Stock, of any Common Stock issued or issuable to
such Buyer pursuant to this Agreement or any other Transaction Documents, multiplied by (y) 10% of the aggregate daily dollar trading
volume (as reported on Bloomberg (as defined in the Notes)) of the Common Stock on the Principal Market for each Trading Day (as
defined in the Notes) either (1) with respect to the initial Disclosure Delay Payment Date, during the period commencing on the
applicable Required Disclosure Date through and including the Trading Day immediately prior to the initial Disclosure Delay Payment
Date or (2) with respect to each other Disclosure Delay Payment Date, during the period commencing the immediately preceding Disclosure
Delay Payment Date through and including the Trading Day immediately prior to such applicable Disclosure Delay Payment Date (such
applicable period, the “Disclosure Restitution Period”).


 


(3) “Required
Disclosure Date” means (x) if such Buyer authorized the delivery of such Confidential Information, either (I) if the
Company and such Buyer have mutually agreed upon a date (as evidenced by an e-mail or other writing) of Disclosure of such Confidential
Information, such agreed upon date or (II) otherwise, the seventh (7th) calendar day after the date such Buyer first
received any Confidential Information or (y) if such Buyer did not authorize the delivery of such Confidential Information, the
first (1st) Business Day after such Buyer’s receipt of such Confidential Information.


 


(j) Intentionally
omitted. 


 


(k) Intentionally
omitted.


 


(k) Reservation
of Shares. So long as any of the Notes remain outstanding, either (x) from the Closing Date
until, but not including, the second (2nd) Business Day after such time as the Company shall have initially obtained
the consent of its stockholders after the Closing Date to either (I) increase the authorized shares of the Company or
(II) effect a reverse stock split of the Company (such consent, the “Authorized Share Increase Consent”,
and the date such Authorized Share Increase Consent is obtained by the Company, the “Authorized Share Increase
Consent Date”), the Company shall at all times reserve 5,244,756 shares of Common Stock for issuance upon
conversion of the Notes or (y) from and after the second (2nd) Business Day after the Authorized Share Increase Consent Date,
the Company shall take all action necessary to at all times have authorized, and reserved for the purpose of issuance, no
less than 200% of the maximum number of shares of Common Stock issuable upon conversion of all the Notes then outstanding
(assuming for purposes hereof that (i) the Notes are convertible at the Alternate Conversion Event of Default Price as of the
applicable time of determination, (ii) interest on the Notes shall accrue through the second anniversary of the Closing Date
and will be converted in shares of Common Stock at a conversion price equal to the Alternate Conversion Event of Default
Price assuming an Alternate Conversion Date as of the applicable time of determination and (iii) any such conversion shall
not take into account any limitations on the conversion of the Notes set forth in the Notes (collectively, the
“Required Reserve Amount”)); provided that at no time shall the number of shares of Common Stock reserved
pursuant to this Section 4(l) be reduced other than proportionally in connection with any conversion, exercise and/or
redemption, as applicable of Notes. If at any time the number of shares of Common Stock authorized and reserved for issuance
is not sufficient to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to
authorize and reserve a sufficient number of shares, including, without limitation, calling a special meeting of stockholders
to authorize additional shares to meet the Company’s obligations pursuant to the Transaction Documents, in the case of
an insufficient number of authorized shares, obtain stockholder approval of an increase in such authorized number of shares,
and voting the management shares of the Company in favor of an increase in the authorized shares of the Company to ensure
that the number of authorized shares is sufficient to meet the Required Reserve Amount.


 






    	 	27	 



     


    

 


(l) Conduct of
Business. The business of the Company and its Subsidiaries shall not be conducted in violation
of any law, ordinance or regulation of any Governmental Entity, except where such violations would not reasonably be expected
to result, either individually or in the aggregate, in a Material Adverse Effect.


 


(m) Dilutive Issuances.
For so long as any Notes remain outstanding, the Company shall not, in any manner, enter into or affect any Dilutive Issuance
(as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon conversion
of any Notes any shares of Common Stock in excess of that number of shares of Common Stock which the Company may issue upon conversion
of the Notes without breaching the Company’s obligations under the rules or regulations of the Principal Market.


 


(n) Passive Foreign
Investment Company. The Company shall conduct its business, and shall cause its Subsidiaries
to conduct their respective businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive
foreign investment company within the meaning of Section 1297 of the Code.


 


(o) Restriction
on Redemption and Cash Dividends. So long as any Notes are outstanding, the Company shall not, directly or indirectly, redeem, or declare
or pay any cash dividend or distribution on, any securities of the Company other than the November Notes, the August Notes and
the Exchange Warrants pursuant to the terms thereof without the prior express written consent of the Required Holders.


 


(p) Corporate Existence.
So long as any Buyer beneficially owns any Notes, the Company shall not be party to any Fundamental Transaction (as defined in
the Notes) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in
the Notes.


 


(q) Stock Splits.
Until the Notes and all notes issued pursuant to the terms thereof are no longer outstanding, the Company shall not effect any
stock combination, reverse stock split or other similar transaction (or make any public announcement or disclosure with respect
to any of the foregoing) without the prior written consent of the Required Holders (as defined below), except as required by an
Eligible Market to provide for the eligibility or continued eligibility of the Common Stock for listing or quotation on such market.


 


(r) Conversion Procedures.
Each of the form of Conversion Notice (as defined in the Notes) included in the Notes set forth the totality of the procedures
required of the Buyers in order to convert the Notes. Except as provided in Section 5(d), no additional legal opinion, other information
or instructions shall be required of the Buyers to convert their Notes. The Company shall honor conversions of the Notes and shall
deliver the Conversion Shares in accordance with the terms, conditions and time periods set forth in the Notes.


 


(s) Regulation
M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection
with the distribution of the Securities contemplated hereby.


 






    	 	28	 



     


    

 


(t) General Solicitation.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act) or any person acting on behalf of the
Company or such affiliate will solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation
or general advertising within the meaning of Regulation D, including: (i) any advertisement, article, notice or other communication
published in any newspaper, magazine or similar medium or broadcast over television or radio; and (ii) any seminar or meeting
whose attendees have been invited by any general solicitation or general advertising.


 


(u) Integration.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting on behalf of the
Company or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any security
(as defined in the 1933 Act) which will be integrated with the sale of the Securities in a manner which would require the registration
of the Securities under the 1933 Act and the Company will take all action that is appropriate or necessary to assure that its
offerings of other securities will not be integrated for purposes of the 1933 Act, with the issuance of Securities contemplated
hereby.


 


(v) Notice of Disqualification
Events. The Company will notify the Buyers in writing, prior to the Closing Date of (i)
any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become
a Disqualification Event relating to any Issuer Covered Person.


 


(w) Stockholder
Approval. The Company shall provide each stockholder entitled to vote at a special meeting of
stockholders of the Company (the “Stockholder Meeting”), which shall be promptly called and held not later
than April 15, 2018 (the “Stockholder Meeting Deadline”), a proxy statement, in a form reasonably acceptable
to the Buyers and Kelley Drye & Warren LLP, at the expense of the Company, with the Company obligated to reimburse the expenses
of Kelley Drye & Warren LLP incurred in connection therewith, soliciting each such stockholder’s affirmative vote at
the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the issuance
of all of the Securities in accordance with Nasdaq Listing Rule 5635 (the “Stockholder Approval”, and the date
the Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company shall use its reasonable
best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of Directors of the Company
to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stockholder
Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable best efforts the Stockholder Approval
is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to
be held on or prior to June 30, 2018. If, despite the Company’s reasonable best efforts the Stockholder Approval is not
obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held semi-annually
thereafter until such Stockholder Approval is obtained.


 


(x) No Waiver of
Voting and Lockup Agreements. The Company shall not amend, waive or modify any provision of any of the Voting and Lockup Agreements
(as defined below).


 






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(y) Public Information.
At any time during the period commencing from the six (6) month anniversary of the Closing Date and ending at such time that all
of the Securities, if a registration statement is not available for the resale of all of the Securities, may be sold without restriction
or limitation pursuant to Rule 144 and without the requirement to be in compliance with Rule 144(c)(1), if the Company shall (i)
fail for any reason to satisfy the requirements of Rule 144(c)(1), including, without limitation, the failure to satisfy the current
public information requirement under Rule 144(c) or (ii) if the Company becomes an issuer described in Rule 144(i)(1)(i), and the
Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Current Public Information Failure”)
then, as partial relief for the damages to any holder of Securities by reason of any such delay in or reduction of its ability
to sell the Securities (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall
pay to each such holder an amount in cash equal to two percent (2.0%) of the aggregate Series A-1 Cash Purchase Price of such holder's
Securities on the day of a Current Public Information Failure and on every thirtieth day (pro rated for periods totaling less than
thirty days) thereafter until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that
such Current Public Information Failure no longer prevents a holder of Securities from selling such Securities pursuant to Rule
144 without any restrictions or limitations. The payments to which a holder shall be entitled pursuant to this Section 4(z) are
referred to herein as “Current Public Information Failure Payments.” Current Public Information Failure Payments
shall be paid on the earlier of (I) the last day of the calendar month during which such Current Public Information Failure Payments
are incurred and (II) the third Business Day after the event or failure giving rise to the Current Public Information Failure Payments
is cured. In the event the Company fails to make Current Public Information Failure Payments in a timely manner, such Current Public
Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full.


 


(z) Closing Documents.
On or prior to fourteen (14) calendar days after the Closing Date, the Company agrees to deliver, or cause to be delivered, electronically
to each Buyer and Kelley Drye & Warren LLP a complete closing set of the executed Transaction Documents, Securities and any
other document required to be delivered to any party pursuant to Section 7 hereof or otherwise (which may be photocopies
or pdf versions of executed copies).


 


5. REGISTER; TRANSFER
AGENT INSTRUCTIONS; LEGEND.


 


(a) Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate
by notice to each holder of Securities), a register for the Notes in which the Company shall record the name and address of the
Person in whose name the Notes have been issued (including the name and address of each transferee), the principal amount of the
Notes held by such Person and the number of Conversion Shares issuable pursuant to the terms of the Notes. The Company shall keep
the register open and available at all times during business hours for inspection of any Buyer or its legal representatives.


 


(b) Transfer Agent
Instructions. The Company shall issue irrevocable instructions to its transfer agent and any
subsequent transfer agent (as applicable, the “Transfer Agent”) in a form acceptable to each of the Buyers
(the “Irrevocable Transfer Agent Instructions”) to issue certificates or credit shares to the applicable balance
accounts at The Depository Trust Company (“DTC”), registered in the name of each Buyer or its respective nominee(s),
for the Conversion Shares in such amounts as specified from time to time by each Buyer to the Company upon conversion of the Notes.
The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in
this Section 5(b), and stop transfer instructions to give effect to Section 2(g) hereof, will be given by the Company to
its transfer agent with respect to the Securities, and that the Securities shall otherwise be freely transferable on the books
and records of the Company, as applicable, to the extent provided in this Agreement and the other Transaction Documents. If a
Buyer effects a sale, assignment or transfer of the Securities in accordance with Section 2(g), the Company shall permit the transfer
and shall promptly instruct its transfer agent to issue one or more certificates or credit shares to the applicable balance accounts
at DTC in such name and in such denominations as specified by such Buyer to effect such sale, transfer or assignment. In the event
that such sale, assignment or transfer involves Conversion Shares sold, assigned or transferred pursuant to an effective registration
statement or in compliance with Rule 144, the transfer agent shall issue such shares to such Buyer, assignee or transferee (as
the case may be) without any restrictive legend in accordance with Section 5(d) below. The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy
at law for a breach of its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or
threatened breach by the Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all
other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer,
without the necessity of showing economic loss and without any bond or other security being required. The Company shall cause
its counsel to issue the legal opinion referred to in the Irrevocable Transfer Agent Instructions to the Company’s transfer
agent from and after the Applicable Date. Any fees (with respect to the transfer agent, counsel to the Company or otherwise) associated
with the issuance of such opinion or the removal of any legends on any of the Securities shall be borne by the Company. “Applicable
Date” means the first date on which all of the Underlying Securities are eligible to be resold by the Buyers pursuant to
Rule 144 (or, if a Current Public Information Failure has occurred and is continuing, such later date after which the Company
has cured such Current Public Information Failure).


 






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(c) Legends.
Each Buyer understands that the Securities have been issued (or will be issued in the case of the Conversion Shares) pursuant
to an exemption from registration or qualification under the 1933 Act and applicable state securities laws, and except as set
forth below, the Securities shall bear any legend as required by the “blue sky” laws of any state and a restrictive
legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):


 


[NEITHER THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN][THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL 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 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY
BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 


(d) Removal of
Legends. Certificates evidencing Securities shall not be required to contain the legend set
forth in Section 5(c) above or any other legend (i) while a registration statement covering the resale of such Securities
is effective under the 1933 Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor is not
an affiliate of the Company), (iii) if such Securities are eligible to be sold, assigned or transferred under Rule 144 (provided
that a Buyer provides the Company with reasonable assurances that such Securities are eligible for sale, assignment or transfer
under Rule 144 which shall not include an opinion of Buyer’s counsel), (iv) in connection with a sale, assignment or other
transfer (other than under Rule 144), provided that such Buyer provides the Company with an opinion of counsel to such Buyer,
in a generally acceptable form, to the effect that such sale, assignment or transfer of the Securities may be made without registration
under the applicable requirements of the 1933 Act or (v) if such legend is not required under applicable requirements of the 1933
Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the SEC). If a legend is
not required pursuant to the foregoing, the Company shall no later than three (3) Trading Days (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 date such
Buyer delivers such legended certificate representing such Securities to the Company) following the delivery by a Buyer to the
Company or the transfer agent (with notice to the Company) of a legended certificate representing such Securities (endorsed or
with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, if
applicable), together with any other deliveries from such Buyer as may be required above in this Section 5(d), as directed
by such Buyer, either: (A) provided that the Company’s transfer agent is participating in the DTC Fast Automated Securities
Transfer Program and such Securities are Conversion Shares, credit the aggregate number of shares of Common Stock to which such
Buyer shall be entitled to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system or (B) if the Company’s transfer agent is not participating in the DTC Fast Automated Securities Transfer
Program, issue and deliver (via reputable overnight courier) to such Buyer, a certificate representing such Securities that is
free from all restrictive and other legends, registered in the name of such Buyer or its designee (the date by which such credit
is so required to be made to the balance account of such Buyer’s or such Buyer’s designee with DTC or such certificate
is required to be delivered to such Buyer pursuant to the foregoing is referred to herein as the “Required Delivery Date”,
and the date such shares of Common Stock are actually delivered without restrictive legend to such Buyer or such Buyer’s
designee with DTC, as applicable, the “Share Delivery Date”). The Company shall be responsible for any transfer
agent fees or DTC fees with respect to any issuance of Securities or the removal of any legends with respect to any Securities
in accordance herewith.


 






    	 	31	 



     


    

 


(e) Failure to
Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to issue and
deliver (or cause to be delivered) to a Buyer (or its designee) by the Required Delivery Date, either (I) if the Transfer Agent
is not participating in the DTC Fast Automated Securities Transfer Program, a certificate for the number of Conversion Shares
to which such Buyer is entitled and register such Conversion Shares on the Company’s share register or, if the Transfer
Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer or such
Buyer’s designee with DTC for such number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section
5(d) above or (II) if after the Applicable Date a Current Public Information Failure occurs and the Company fails to promptly
(x) so notify such Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such
aggregate number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s
or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the
immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event
described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to
such Buyer, the Company shall pay in cash to such Buyer on each day after the Share Delivery Date and during such Delivery Failure
an amount equal to 2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior
to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such
Buyer in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company
of the applicable Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior
to the Required Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer
Program, the Company shall fail to issue and deliver a certificate to a Buyer 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,
credit the balance account of such Buyer or such Buyer’s designee with DTC for the number of shares of Common Stock to which
such Buyer submitted for legend removal by such Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs,
and if on or after such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to
deliver in satisfaction of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant
to Section 5(d) above that such Buyer is entitled to receive from the Company (a “Buy-In”), then the Company
shall, within three (3) Trading Days after such Buyer’s request and in such Buyer’s discretion, either (i) pay cash
to such Buyer in an amount equal to such Buyer’s total purchase price (including brokerage commissions and other out-of-pocket
expenses, if any, for the shares of Common Stock so purchased) (the “Buy-In Price”), at which point the Company’s
obligation to so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be
cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance
account of such Buyer or such Buyer’s designee with DTC representing such number of shares of Common Stock that would have
been so delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal
to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Conversion Shares that the Company
was required to deliver to such Buyer by the Required Delivery Date multiplied by (B) the lowest Closing Sale Price (as defined
in the Notes) of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Buyer to
the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing
shall limit such Buyer’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) as required pursuant
to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery
Failure, this Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full
to such Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of
the Note held by such Buyer.


 






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(f) FAST Compliance.
While any Notes remain outstanding, the Company shall maintain a transfer agent that participates in the DTC Fast Automated Securities
Transfer Program.


 


6. CONDITIONS TO
THE COMPANY’S OBLIGATION TO SELL.


 


(a) The obligation
of the Company hereunder to issue and sell the Notes to each Buyer at the Closing is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit
and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof:


 


(i) Such
Buyer shall have duly executed and delivered to the Company an Investor Collateral Certificate and issued an Investor Note to the
Company in such original principal amount as is set forth across from such Buyer’s name in column (7) of the Schedule of
Buyers, which shall be held by such Buyer as Collateral for the obligations of the Company under the Series B-1 Note issued to
such Buyer hereunder.


 


(ii) Such
Buyer and each other Buyer shall have delivered to the Company the Series A-1 Cash Purchase Price (less, in the case of any Buyer,
the amounts withheld pursuant to Section 4(g)) for the Series A-1 Note being purchased by such Buyer at the Closing by wire
transfer of immediately available funds in accordance with the Flow of Funds Letter.


 


(iii) Such
Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.


 


(iv) The
representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as
of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such specific date), and such Buyer shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied
with by such Buyer at or prior to the Closing Date.


 


7. CONDITIONS TO
EACH BUYER’S OBLIGATION TO PURCHASE.


 


(a) The obligation
of each Buyer hereunder to purchase its Note at the Closing is subject to the satisfaction, at or before the Closing Date, of
each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by
such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:


 


(i) The Company
and MoviePass (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents to which
it is a party and the Company shall have duly executed and delivered to such Buyer (A) a Series A-1 Note in such aggregate original
principal amount as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers as being purchased
by such Buyer at the Closing pursuant to this Agreement and (B) a Series B-1 Note in such aggregate original principal amount as
is set forth across from such Buyer’s name in column (4) of the Schedule of Buyers as being purchased by such Buyer at the
Closing pursuant to this Agreement, in each case, as being purchased by such Buyer at the Closing pursuant to this Agreement.


 






    	 	33	 



     


    

 


(ii) Such
Buyer shall have received the opinions of Mitchell Silberberg & Knupp LLP, the Company’s corporate counsel and Ellenoff
Grossman & Schole, MoviePass’ corporate counsel, dated as of the Closing Date, addressed to the Buyers and the Placement
Agent, in the form acceptable to such Buyer.


 


(iii) The
Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to such
Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.


 


(iv) The
Company shall have delivered to such Buyer (A) a certificate evidencing the good standing of each of the Company and MoviePass
issued by the Secretary of State of Delaware, and (B) a certificate evidencing the Company’s qualification as a foreign corporation
and good standing issued by the Secretary of State of each of New York and California (as to the Company) and New York (as to MoviePass),
as of a date within ten (10) days of the Closing Date.


 


(v) The Company
shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Delaware Secretary
of State within ten (10) days of the Closing Date.


 


(vi) MoviePass
shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State
(or comparable office) of Delaware within ten (10) days of the Closing Date.


 


(vii) The
Company and MoviePass shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary
of the Company and MoviePass and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted
by the Company’s and MoviePass’ respective board of directors in a form reasonably acceptable to such Buyer, (ii) the
Certificate of Incorporation of the Company and MoviePass, and (iii) the Bylaws of the Company and MoviePass, each as in effect
at the Closing.


 


(viii) Each
and every representation and warranty of the Company shall be true and correct in all material respects (except for such representations
and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as
of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties
that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed,
satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied
or complied with by the Company at or prior to the Closing Date. Such Buyer shall have received a certificate, duly executed by
the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters
as may be reasonably requested by such Buyer in the form acceptable to such Buyer.


 






    	 	34	 



     


    

 


(ix) The
Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of
Common Stock outstanding on the Closing Date immediately prior to the Closing.


 


(x) The Common
Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended,
as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC
or the Principal Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Principal Market
or (II) by falling below the minimum maintenance requirements of the Principal Market.


 


(xi) The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale
of the Securities, including without limitation, those required by the Principal Market, if any.


 


(xii) No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents.


 


(xiii) Since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result
in a Material Adverse Effect.


 


(xiv) The
Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Conversion
Shares.


 


(xv) MoviePass
shall have executed and delivered to such Buyer a Guaranty in favor of such Buyer.


 


(xvi) Within
two (2) Business Days prior to the Closing, the Company shall have delivered or caused to be delivered to each Buyer certified
copies of requests for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the
Company or MoviePass and which are filed in such office or offices as may be necessary or, in the opinion of the Buyers, desirable
to perfect the security interests purported to be created hereby, together with copies of such financing statements, none of which,
except as otherwise agreed in writing by the Buyers, shall cover any of the Collateral (as defined in the Series B-1 Notes), and
the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except as
otherwise agreed to in writing by the Buyers, shall not show any such Liens.


 


(xvii) The
Company shall have irrevocably directed each Buyer to hold such Buyer’s Investor Note as Collateral for the obligations of
the Company under the Series B-1 Notes.


 


(xviii) In
accordance with the terms of the Security Documents, the Company shall have delivered to such Buyer appropriate financing statements
on Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of the Required Holders, desirable
to perfect the security interests purported to be created by each Security Document.


 






    	 	35	 



     


    

 


(xix) The
Company shall have reimbursed Kelley Drye & Warren LLP for all Transaction Expenses in accordance with the invoice of Kelley
Drye & Warren LLP delivered to the Company on or prior to the Closing Date.


 


(xx) Such
Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer of the Company,
setting forth the wire amounts of each Buyer and the wire transfer instructions of the Company with respect to the Series A-1 Cash
Purchase Price set forth in column (6) of the Schedule of Buyers (the “Flow of Funds Letter”).


 


(xxi) The
Company shall have duly executed and delivered to such Buyer voting and lockup agreements, each in the form of Exhibit E
hereof (the “Voting and Lockup Agreement”), duly executed and delivered to such Buyer by the Company, on one
hand, and, in separate Voting and Lockup Agreements, on the other hand, each stockholder listed on Schedule 7(a)(xxiii) (the “Principal
Stockholders”), representing approximately 31% of the outstanding Common Stock of the Company as of the date hereof.


 


(xxii) MoviePass
shall have waived (i) all rights to terminate the MoviePass SPA and (ii) all conditions to the closing of the transactions contemplated
by the MoviePass SPA, in each case, other than with respect to the failure to obtain the approval of the stockholders of the Company
to the transactions contemplated thereby if required by the rules of the Principal Market or applicable law.


 


(xxiii) The
Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the
transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.


 


8. TERMINATION.


 


In the event that the
Closing shall not have occurred with respect to a Buyer within five (5) days of the date hereof, then such Buyer shall have the
right to terminate its obligations under this Agreement with respect to itself at any time on or after the close of business on
such date without liability of such Buyer to any other party; provided, however, (i) the right to terminate this Agreement under
this Section 8 shall not be available to such Buyer if the failure of the transactions contemplated by this Agreement to have
been consummated by such date is the result of such Buyer’s breach of this Agreement and (ii) the abandonment of the sale
and purchase of the Notes shall be applicable only to such Buyer providing such written notice, provided further that no such termination
shall affect any obligation of the Company under this Agreement to reimburse such Buyer for the expenses described in Section 4(g)
above. Nothing contained in this Section 8 shall be deemed to release any party from any liability for any breach by such
party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel
specific performance by any other party of its obligations under this Agreement or the other Transaction Documents.


 






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9. MISCELLANEOUS.


 


(a) Governing Law;
Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause
the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication
of any dispute hereunder or in connection herewith or under any of the other Transaction Documents or with any transaction contemplated
hereby or thereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient
forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party
at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service
of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking
other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to such Buyer or
to enforce a judgment or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE
TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY
OR THEREBY.


 


(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that
any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of
an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.


 


(c) Headings; Gender.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine,
neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and
words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision
in which they are found.


 


(d) Severability;
Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise
determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited,
invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the
invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so
long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as
to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the
benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the
prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to
that of the prohibited, invalid or unenforceable provision(s). Notwithstanding anything to the contrary contained in this Agreement
or any other Transaction Document (and without implication that the following is required or applicable), it is the intention
of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the case may be),
or payable to or received by any of the Buyers, under the Transaction Documents (including without limitation, any amounts that
would be characterized as “interest” under applicable law) exceed amounts permitted under any applicable law. Accordingly,
if any obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant the Transaction Documents is finally
judicially determined to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed
to have been made by mutual mistake of such Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been
adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited
by the applicable law. Such adjustment shall be effected, to the extent necessary, by reducing or refunding, at the option of
such Buyer, the amount of interest or any other amounts which would constitute unlawful amounts required to be paid or actually
paid to such Buyer under the Transaction Documents. For greater certainty, to the extent that any interest, charges, fees, expenses
or other amounts required to be paid to or received by such Buyer under any of the Transaction Documents or related thereto are
held to be within the meaning of “interest” or another applicable term to otherwise be violative of applicable law,
such amounts shall be pro-rated over the period of time to which they relate.


 






    	 	37	 



     


    

 


(e) Entire Agreement;
Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto
and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the
Company, its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions
by any Buyer with respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement,
the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and
therein contain the entire understanding of the parties solely with respect to the matters covered herein and therein; provided,
however, nothing contained in this Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect
on any agreements any Buyer has entered into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries
prior to the date hereof with respect to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or
amend in any respect any obligations of the Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any
other Person, in any agreement entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries
and any Buyer, or any instruments any Buyer received from the Company and/or any of its Subsidiaries prior to the date hereof,
and all such agreements and instruments shall continue in full force and effect. Except as specifically set forth herein or therein,
neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. For
clarification purposes, the Recitals are part of this Agreement. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Required Holders (as defined below), and any amendment to any provision of
this Agreement made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities,
as applicable; provided that no such amendment shall be effective to the extent that it (A) applies to less than all of the holders
of the Securities then outstanding or (solely vis-a-vis the other Notes) disproportionately and adversely amends or modifies any
term or condition of the Notes (it being understood that any holder of November Notes, August Notes and/or Exchange Warrants may
receive consideration or benefits in its capacity as a holder of November Notes, August Notes and/or Exchange Warrants without
impacting such proportionality determination hereunder) or (B) imposes any financial obligation or liability on any Buyer without
such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion). No waiver shall
be effective unless it is in writing and signed by an authorized representative of the waiving party, provided that the Required
Holders may waive any provision of this Agreement, and any waiver of any provision of this Agreement made in conformity with the
provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities, as applicable, provided that no
such waiver shall be effective to the extent that it (1) applies to less than all of the holders of the Securities then outstanding
(unless a party gives a waiver as to itself only) or (2) imposes any financial obligation or liability on any Buyer without such
Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion). As a material inducement
for each Buyer to enter into this Agreement, the Company expressly acknowledges and agrees that (x) no due diligence or other investigation
or inquiry conducted by a Buyer, any of its advisors or any of its representatives shall affect such Buyer’s right to rely
on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained
in this Agreement or any other Transaction Document and (y) unless a provision of this Agreement or any other Transaction Document
is expressly preceded by the phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC
Documents shall affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any
of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document. “Required
Holders” means (I) Hudson Bay Master Fund Ltd., both prior to the Closing and, thereafter, so long as it beneficially
owns any of the Notes (or any Convertible Securities issued in exchange therefore) or any Underlying Securities and (II) after
the Closing, so long as Hudson Bay Master Fund Ltd. does not beneficially owns any of the Notes (or any Convertible Securities
issued in exchange therefore) or any Underlying Securities, holders of a majority of the Underlying Securities as of such time
(excluding any Underlying Securities held by the Company or any of its Subsidiaries as of such time) issued or issuable hereunder
or pursuant to the Notes.


 






    	 	38	 



     


    

 


(f) Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon delivery, when
sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party) or electronic mail; or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery
specified, in each case, properly addressed to the party to receive the same. The addresses, facsimile numbers and e-mail addresses
for such communications shall be:


 


If to the Company:


 


Helios and Matheson Analytics Inc.

Empire State Building


350 5th Avenue


New York, New York 10118

Telephone: (212) 979-8228

Attention: Chief Financial Officer

E-Mail: sbenson@hmny.com


 


With a copy (for informational purposes only) to:


 


Mitchell Silberberg & Knupp LLP

11377 W. Olympic Blvd.


Los Angeles, CA 90065

Telephone: (310) 312-3106

Facsimile: (310) 312-3100

Attention: Kevin Friedmann, Esq.

E-Mail: kxf@msk.com


 


If to the Transfer Agent:


 


Computershare

211 Quality Circle, Suite 210


College Station, TX 77845

Telephone: (502) 301-6102

Facsimile: (866) 519-2854

Attention: Jade Larimore

E-Mail: Jade.Larimore@computershare.com


 


If to a Buyer, to its address, e-mail address
and facsimile number set forth on the Schedule of Buyers, with copies to such Buyer’s representatives as set forth on the
Schedule of Buyers,


 


with a copy (for informational purposes only) to:


 


Kelley Drye & Warren LLP

101 Park Avenue

New York, NY 10178

Telephone: (212) 808-7540

Facsimile: (212) 808-7897

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 






    	 	39	 



     


    

 


or to such other address, e-mail address
and/or facsimile number and/or to the attention of such other Person as the recipient party has specified by written notice given
to each other party five (5) days prior to the effectiveness of such change, provided that Kelley Drye & Warren LLP shall only
be provided copies of notices sent to Hudson Bay. Written confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine or e-mail containing
the time, date, recipient facsimile number and, with respect to each facsimile transmission, an image of the first page of such
transmission or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 


(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns, including any purchasers of any of the Notes. The Company shall not assign this Agreement
or any rights or obligations hereunder without the prior written consent of the Required Holders, including, without limitation,
by way of a Fundamental Transaction (as defined in the Notes) (unless the Company is in compliance with the applicable provisions
governing Fundamental Transactions set forth in the Notes). A Buyer may assign some or all of its rights hereunder in connection
with any transfer of any of its Securities without the consent of the Company, in which event such assignee shall be deemed to
be a Buyer hereunder with respect to such assigned rights.


 


(h) No Third Party
Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person,
other than the Indemnitees referred to in Section 9(k). Notwithstanding the foregoing, the Placement Agent shall be intended
third party beneficiaries of (i) the Company’s representations and warranties set forth in Section 3 hereof and (ii) each
Buyer’s representations, warranties and agreements set forth in Section 2 hereof.


 


(i) Survival.
The representations, warranties, agreements and covenants shall survive the Closing. Each Buyer shall be responsible only for
its own representations, warranties, agreements and covenants hereunder.


 


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


 


(k) Indemnification.


 


(i) In consideration
of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition
to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and
hold harmless each Buyer and each holder of any Securities and all of their stockholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including,
without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification
hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”),
incurred by any Indemnitee as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation
or warranty made by the Company or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement
or obligation of the Company or any Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit,
proceeding or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action
brought on behalf of the Company or any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from
(A) the execution, delivery, performance or enforcement of any of the Transaction Documents, (B) any transaction financed or to
be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, (C) any disclosure
properly made by such Buyer pursuant to Section 4(i), or (D) the status of such Buyer or holder of the Securities either as
an investor in the Company pursuant to the transactions contemplated by the Transaction Documents or as a party to this Agreement
(including, without limitation, as a party in interest or otherwise in any action or proceeding for injunctive or other equitable
relief). To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable
law.


 






    	 	40	 



     


    

 


(ii) Promptly
after receipt by an Indemnitee under this Section 9(k) of notice of the commencement of any action or proceeding (including any
governmental action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim in respect thereof is
to be made against the Company under this Section 9(k), deliver to the Company a written notice of the commencement thereof, and
the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense
thereof with counsel mutually satisfactory to the Company and the Indemnitee; provided, however, that an Indemnitee shall have
the right to retain its own counsel with the fees and expenses of such counsel to be paid by the Company if: (A) the Company has
agreed in writing to pay such fees and expenses; (B) the Company shall have failed promptly to assume the defense of such Indemnified
Liability and to employ counsel reasonably satisfactory to such Indemnitee in any such Indemnified Liability; or (C) the named
parties to any such Indemnified Liability (including any impleaded parties) include both such Indemnitee and the Company, and such
Indemnitee shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent
such Indemnitee and the Company (in which case, if such Indemnitee notifies the Company in writing that it elects to employ separate
counsel at the expense of the Company, then the Company shall not have the right to assume the defense thereof and such counsel
shall be at the expense of the Company), provided further, that in the case of clause (C) above the Company shall not be responsible
for the reasonable fees and expenses of more than one (1) separate legal counsel for the Indemnitees. The Indemnitee shall reasonably
cooperate with the Company in connection with any negotiation or defense of any such action or Indemnified Liability by the Company
and shall furnish to the Company all information reasonably available to the Indemnitee which relates to such action or Indemnified
Liability. The Company shall keep the Indemnitee reasonably apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. The Company shall not be liable for any settlement of any action, claim or proceeding effected
without its prior written consent, provided, however, that the Company shall not unreasonably withhold, delay or condition its
consent. The Company shall not, without the prior written consent of the Indemnitee, consent to entry of any judgment or enter
into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnitee of a release from all liability in respect to such Indemnified Liability or litigation, and such settlement
shall not include any admission as to fault on the part of the Indemnitee. Following indemnification as provided for hereunder,
the Company shall be subrogated to all rights of the Indemnitee with respect to all third parties, firms or corporations relating
to the matter for which indemnification has been made. The failure to deliver written notice to the Company within a reasonable
time of the commencement of any such action shall not relieve the Company of any liability to the Indemnitee under this Section
9(k), except to the extent that the Company is materially and adversely prejudiced in its ability to defend such action.


 


(iii) The
indemnification required by this Section 9(k) shall be made by periodic payments of the amount thereof during the course of the
investigation or defense, within ten (10) days after bills are received or Indemnified Liabilities are incurred.


 


(iv) The
indemnity agreement contained herein shall be in addition to (A) any cause of action or similar right of the Indemnitee against
the Company or others, and (B) any liabilities the Company may be subject to pursuant to the law.


 






    	 	41	 



     


    

 


(l) Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and
no rules of strict construction will be applied against any party. No specific representation or warranty shall limit the generality
or applicability of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock
and any other numbers in this Agreement that relate to the Common Stock shall be automatically adjusted for any stock splits,
stock dividends, stock combinations, recapitalizations or other similar transactions that occur with respect to the Common Stock
after the date of this Agreement. Notwithstanding anything in this Agreement to the contrary, for the avoidance of doubt, nothing
contained herein shall constitute a representation or warranty against, or a prohibition of, any actions with respect to the borrowing
of, arrangement to borrow, identification of the availability of, and/or securing of, securities of the Company in order for such
Buyer (or its broker or other financial representative) to effect short sales or similar transactions in the future.


 


(m) Remedies.
Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have
all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted
at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having
any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond
or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights
granted by law. Furthermore, the Company recognizes that in the event that it or any Subsidiary fails to perform, observe, or
discharge any or all of its or such Subsidiary’s (as the case may be) obligations under the Transaction Documents, any remedy
at law would inadequate relief to the Buyers. The Company therefore agrees that the Buyers shall be entitled 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 remedies provided
in this Agreement and the other Transaction Documents shall be cumulative and in addition to all other remedies available under
this Agreement and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other
injunctive relief).


 


(n) Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) the Transaction Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction
Document and the Company or any Subsidiary does not timely perform its related obligations within the periods therein provided,
then such Buyer may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company or such Subsidiary
(as the case may be), any relevant notice, demand or election in whole or in part without prejudice to its future actions and
rights.


 


(o) Payment Set
Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder
or pursuant to any of the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder,
and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise
restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy
law, foreign, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such enforcement or setoff had not occurred. Unless otherwise expressly indicated, all dollar amounts referred
to in this Agreement and the other Transaction Documents are in United States Dollars (“U.S. Dollars”), and
all amounts owing under this Agreement and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated
in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on
the date of calculation. “Exchange Rate” means, in relation to any amount of currency to be converted into
U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant
date of calculation.


 






    	 	42	 



     


    

 


(p) Judgment Currency.


 


(i) If for
the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document
in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter
in this Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement,
the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:


 


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


 


(2) the date
on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment Conversion
Date”).


 


(ii) If in
the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change in
the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted
at the Exchange Rate prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with
the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion
Date.


 


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


 


(q) Independent
Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the
Transaction Documents are several and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in
any way for the performance of the obligations of any other Buyer under any Transaction Document. Nothing contained herein or
in any other Transaction Document, and no action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute
the Buyers as, and the Company acknowledges that the Buyers do not so constitute, a partnership, an association, a joint venture
or any other kind of group or entity, or create a presumption that the Buyers are in any way acting in concert or as a group or
entity, and the Company shall not assert any such claim with respect to such obligations or the transactions contemplated by the
Transaction Documents or any matters, and the Company acknowledges that the Buyers are not acting in concert or as a group, and
the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by the Transaction
Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction Documents has been made by such Buyer
independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent for such Buyer in connection
with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such Buyer in connection with
monitoring such Buyer’s investment in the Securities or enforcing its rights under the Transaction Documents. The Company
and each Buyer confirms that each Buyer has independently participated with the Company and its Subsidiaries in the negotiation
of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Buyer shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction
Documents, and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose.
The use of a single agreement to effectuate the purchase and sale of the Securities contemplated hereby was solely in the control
of the Company, not the action or decision of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries
and not because it was required or requested to do so by any Buyer. It is expressly understood and agreed that each provision
contained in this Agreement and in each other Transaction Document is between the Company, each Subsidiary and a Buyer, solely,
and not between the Company, its Subsidiaries and the Buyers collectively and not between and among the Buyers.


 


(r) Performance
Date. If the date by which any obligation under any of the Transaction Documents must be performed occurs on a day other than
a Business Day, then the date by which such performance is required shall be the next Business Day following such date.


 


[signature pages follow]


 






    	 	43	 



     


    

 





IN WITNESS WHEREOF,
each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first
written above.


 


	 	COMPANY:
	 	 
	 	HELIOS AND MATHESON ANALYTICS INC.
	 	 	 
	 	By:	/s/ Theodore Farnsworth
	 	 	Name: Theodore Farnsworth
	 	 	Title:   Chief Executive Officer


 






     


     


    

 





IN WITNESS WHEREOF,
each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first
written above.


 


 


	 	BUYER, NOVEMBER BUYER AND AUGUST BUYER:
	 	 
	 	HUDSON BAY MASTER FUND LTD
	 	 	 
	 	By:	/s/ George Antonopoulos   
	 	 	Name: George Antonopoulos
	 	 	Title:  Authorized Signatory
	 	 	 
	 	[   ]  Such Buyer hereby elects that the “Maximum Percentage” (as defined in the Notes) shall be 4.99%.
	 	 
	 	[   ]  Such Buyer hereby elects that the “Maximum Percentage” (as defined in the Notes) shall be 9.99%.



 






     


     


    

 


SCHEDULE
OF BUYERS


 


	(1)	 	(2)	 	(3)	 	 	(4)	 	 	(5)	 	 	(6)	 	 	(7)	 	 	(8)
	Buyer	 	Address and Facsimile Number	 	Original Principal Amount of Series A-1
 Notes	 	 	Original Principal Amount of
 Series B-1
 Notes
	 	 	Purchase Price	 	 	Series A-1 Cash Purchase Price	 	 	Series B-1 Purchase Price 
 and Principal Amount of Investor Note	 	 	Legal Representative’s
 Address and Facsimile Number
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Hudson Bay Master Fund Ltd.	 	Please deliver any notices other than Pre-Notices to:

                                  

                                 777 Third Avenue, 30th Floor
 New York, NY 10017
 Attention: Yoav Roth
 Facsimile: (212) 571-1279
 E-mail: investments@hudsonbaycapital.com
 Residence: Cayman Islands

                                  

                                 Please deliver any Pre-Notice to:

                                  

                                 777 Third Ave., 30th Floor 
New York, NY 10017 
Facsimile: (646) 214-7946 
Attention: Scott Black 
General Counsel and Chief Compliance Officer
	 	$	25,000,000	 	 	$	35,000,000	 	 	$	60,000,000	 	 	$	25,000,000	 	 	$	35,000,000	 	 	Kelley Drye & Warren LLP 
101 Park Avenue 
New York, NY 10178 
Telephone: (212) 808-7540 
Facsimile: (212) 808-7897 
Attention: Michael A. Adelstein, Esq.