Exhibit 10.1


 


SECURITIES PURCHASE AGREEMENT


 


This SECURITIES PURCHASE
AGREEMENT (the “Agreement”), dated as of September 22, 2022, by and between NIGHTFOOD HOLDINGS, INC., a Nevada
corporation, with headquarters located at 520 White Plains Road, Suite 500, Tarrytown, New York 10591 (the “Company”), and
MAST HILL FUND, L.P., a Delaware limited partnership, with its address at 48 Parker Road, Wellesley, MA 02482 (the “Buyer”).


 


WHEREAS:


 


A. The
Company and the Buyer are 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) promulgated by the United States
Securities and Exchange Commission (the “SEC”) under the 1933 Act;


 


B. Buyer
desires to purchase from the Company, and the Company desires to issue and sell to the Buyer, upon the terms and conditions set forth
in this Agreement, a promissory note of the Company, in the aggregate principal amount of $700,000.00 (as the principal amount thereof
may be increased pursuant to the terms thereof, and together with any note(s) issued in replacement thereof or as a dividend thereon or
otherwise with respect thereto in accordance with the terms thereof, in the form attached hereto as Exhibit A, the “Note”),
convertible into shares of common stock, $0.001 par value per share, of the Company (the “Common Stock”), upon the terms and
subject to the limitations and conditions set forth in such Note;


 


C. The
Buyer wishes to purchase, upon the terms and conditions stated in this Agreement, such principal amount of the Note as is set forth immediately
below its name on the signature pages hereto;


 


D. The
Company wishes to issue a common stock purchase warrant to purchase 2,800,000 shares of Common Stock (the “First Warrant”)
and a common stock purchase warrant to purchase 7,000,000 shares of Common Stock (the “Second Warrant”) (the First Warrant
and Second Warrant shall collectively be referred to herein as the “Warrants”) to the Buyer as additional consideration for
the purchase of the Note, which shall be earned in full as of the Closing Date, as further provided herein.


 


NOW THEREFORE, in consideration
of the foregoing and of the agreements and covenants herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Buyer hereby agree as follows:


 


1. Purchase
and Sale of Note.


 


a. Purchase
of Note. On the Closing Date (as defined below), the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from
the Company, the Note, as further provided herein. As used in this Agreement, the term “business day” shall mean any day other
than a Saturday, Sunday, or a day on which commercial banks in the city of New York, New York are authorized or required by law or executive
order to remain closed.


 


b. Form
of Payment. On the Closing Date: (i) the Buyer shall pay the purchase price of $644,000.00 (the “Purchase Price”) for
the Note, to be issued and sold to it at the Closing (as defined below), by wire transfer of immediately available funds to the Company,
in accordance with the Company’s written wiring instructions, against delivery of the Note, and (ii) the Company shall deliver such
duly executed Note and Warrants on behalf of the Company, to the Buyer, against delivery of such Purchase Price. On the Closing, the Buyer
shall withhold a non-accountable sum of $7,000.00 from the Purchase Price to cover the Buyer’s legal fees in connection with the
transactions contemplated by this Agreement.


 


c. Closing
Date. Subject to the satisfaction (or written waiver) of the conditions thereto set forth in Section 6 and Section 7 below, the date
and time of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be on the date that the
Purchase Price for the Note is paid by Buyer pursuant to terms of this Agreement.


 






     


     


    

 


d. Closing.
The closing of the transactions contemplated by this Agreement (the “Closing”) shall occur on the Closing Date at such location
as may be agreed to by the parties (including via exchange of electronic signatures).


 


1A. Warrants.
On or before the Closing Date, the Company shall issue the Warrants to the Buyer pursuant to the terms of contained therein.


 


2. Buyer’s
Representations and Warranties. The Buyer represents and warrants to the Company as of the Closing Date that:


 


a. Investment
Purpose. As of the Closing Date, the Buyer is purchasing the Note and Warrants (the Note, Warrants, shares of Common Stock issuable
upon conversion of or otherwise pursuant to the Note (the “Conversion Shares”), and shares of Common Stock issuable upon exercise
of or otherwise pursuant to the Warrants (the “Exercise Shares”) shall collectively be referred to herein as the “Securities”)
for its own account and not with a present view towards the public sale or distribution thereof, except pursuant to sales registered or
exempted from registration under the 1933 Act; provided, however, that by making the representations herein, the Buyer does
not agree 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 under the 1933 Act.


 


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


 


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


 


d. Information.
The Buyer and its advisors, if any, have been, and for so long as the Note remains outstanding will continue to be, 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
which have been requested by the Buyer or its advisors. The Buyer and its advisors, if any, have been, and for so long as the Note remains
outstanding will continue to be, afforded the opportunity to ask questions of the Company regarding its business and affairs. Notwithstanding
the foregoing, the Company has not disclosed to the Buyer any material nonpublic information regarding the Company or otherwise and will
not disclose such information unless such information is disclosed to the public prior to or promptly following such disclosure to the
Buyer. Neither such inquiries nor any other due diligence investigation conducted by Buyer or any of its advisors or representatives shall
modify, amend or affect Buyer’s right to rely on the Company’s representations and warranties contained in Section 3 below.


 


e. Governmental
Review. The Buyer understands that no United States federal or state agency or any other government or governmental agency has passed
upon or made any recommendation or endorsement of the Securities.


 


f. Transfer
or Re-sale. The Buyer understands that (i) the sale or resale of the Securities has not been and is not being registered under the
1933 Act or any applicable state securities laws, and the Securities may not be transferred unless (a) the Securities are sold pursuant
to an effective registration statement under the 1933 Act, (b) the Buyer shall have delivered to the Company, at the cost of the Company,
an opinion of counsel (which may be the Legal Counsel Opinion (as defined below)) that shall be in form, substance and scope customary
for opinions of counsel in comparable transactions to the effect that the Securities to be sold or transferred may be sold or transferred
pursuant to an exemption from such registration, which opinion shall be accepted by the Company, (c) the Securities are sold or transferred
to an “affiliate” (as defined in Rule 144 promulgated under the 1933 Act (or a successor rule) (“Rule 144”)) of
the Buyer who agrees to sell or otherwise transfer the Securities only in accordance with this Section 2(f) and who is an Accredited Investor,
(d) the Securities are sold pursuant to Rule 144 or other applicable exemption, or (e) the Securities are sold pursuant to Regulation
S under the 1933 Act (or a successor rule) (“Regulation S”), and the Buyer shall have delivered to the Company, at the cost
of the Company, an opinion of counsel that shall be in form, substance and scope customary for opinions of counsel in corporate transactions,
which opinion shall be accepted by the Company; (ii) any sale of such Securities made in reliance on Rule 144 may be made only in accordance
with the terms of said Rule and further, if said Rule is not applicable, any re-sale of such 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 thereunder; and (iii) neither
the Company nor any other person is under any obligation to register such Securities under the 1933 Act or any state securities laws or
to comply with the terms and conditions of any exemption thereunder (in each case). Notwithstanding the foregoing or anything else contained
herein to the contrary, the Securities may be pledged in connection with a bona fide margin account or other lending 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 the Buyer in effecting such pledge of Securities shall be not required to provide the Company with any notice thereof or otherwise
make any delivery to the Company pursuant to this Agreement or otherwise.


 






    2


     


    

 


g. Legends.
The Buyer understands that until such time as the Note, Warrants, Conversion Shares, and/or Exercise Shares, have been registered under
the 1933 Act or may be sold pursuant to Rule 144, Rule 144A under the 1933 Act, Regulation S, or other applicable exemption without any
restriction as to the number of securities as of a particular date that can then be immediately sold, the Securities may bear a restrictive
legend in substantially the following form (and a stop-transfer order may be placed against transfer of such Securities):


 


“NEITHER THE ISSUANCE AND
SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE [CONVERTIBLE/EXERCISABLE] HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR
SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER), IN A GENERALLY ACCEPTABLE FORM,
THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144, RULE 144A, REGULATION S, OR OTHER APPLICABLE
EXEMPTION 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.”


 


The legend set forth above
shall be removed and the Company shall issue a certificate or book entry statement for the applicable shares of Common Stock without such
legend to the holder of any Security upon which it is stamped or (as requested by such holder) issue the applicable shares of Common Stock
to such holder by electronic delivery by crediting the account of such holder’s broker with The Depository Trust Company (“DTC”),
if, unless otherwise required by applicable state securities laws, (a) such Security is registered for sale under an effective registration
statement filed under the 1933 Act or otherwise may be sold pursuant to Rule 144, Rule 144A, Regulation S, or other applicable exemption
without any restriction as to the number of securities as of a particular date that can then be immediately sold, or (b) the Company or
the Buyer provides the Legal Counsel Opinion (as contemplated by and in accordance with Section 4(m) hereof) to the effect that a public
sale or transfer of such Security may be made without registration under the 1933 Act, which opinion shall be accepted by the Company
so that the sale or transfer is effected. The Company shall be responsible for the fees of its transfer agent and all DTC fees associated
with any such issuance. The Buyer agrees to sell all Securities, including those represented by a certificate(s) from which the legend
has been removed, in compliance with applicable prospectus delivery requirements, if any. In the event that the Company does not accept
the opinion of counsel provided by the Buyer with respect to the transfer of Securities pursuant to an exemption from registration, such
as Rule 144, Rule 144A, Regulation S, or other applicable exemption at the Deadline (as defined in the Note), it will be considered an
Event of Default pursuant to Section 3.2 of the Note.


 






    3


     


    

 


h. Authorization;
Enforcement. This Agreement has been duly and validly authorized by the Buyer and has been duly executed and delivered on behalf of
the Buyer, and this Agreement constitutes a valid and binding agreement of the Buyer enforceable in accordance with its terms, except
as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights
generally and except as may be limited by the exercise of judicial discretion in applying principles of equity.


 


3. Representations
and Warranties of the Company. The Company represents and warrants to the Buyer as of the Closing Date that:


 


a. Organization
and Qualification. The Company and each of its Subsidiaries (as defined below), if any, is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it is incorporated, with full power and authority (corporate and other)
to own, lease, use and operate its properties and to carry on its business as and where now owned, leased, used, operated and conducted.
Schedule 3(a), if attached hereto, sets forth a list of all of the Subsidiaries of the Company and the jurisdiction in which each is incorporated.
The Company and each of its Subsidiaries is duly qualified as a foreign corporation to do business and is in good standing in every jurisdiction
in which its ownership or use of property or the nature of the business conducted by it makes such qualification necessary except where
the failure to be so qualified or in good standing would not have a Material Adverse Effect. “Material Adverse Effect” means
any material adverse effect on the business, operations, assets, financial condition or prospects of the Company or its Subsidiaries,
if any, taken as a whole, or on the transactions contemplated hereby or by the agreements or instruments to be entered into in connection
herewith. “Subsidiaries” means any corporation or other organization, whether incorporated or unincorporated, in which the
Company owns, directly or indirectly, any equity or other ownership interest.


 


b. Authorization;
Enforcement. The Company has all requisite corporate power and authority to enter into and perform this Agreement, the Note, and to
consummate the transactions contemplated hereby and thereby and to issue the Securities, in accordance with the terms hereof and thereof,
(ii) the execution and delivery of this Agreement, the Warrants, the Note, Conversion Shares, and the Exercise Shares by the Company and
the consummation by it of the transactions contemplated hereby and thereby (including without limitation, the issuance of the Note, Warrants,
as well as the issuance and reservation for issuance of the Conversion Shares and Exercise Shares issuable upon conversion of the Note
and/or exercise of the Warrants) have been duly authorized by the Company’s Board of Directors and no further consent or authorization
of the Company, its Board of Directors, its shareholders, or its debt holders is required, (iii) this Agreement and the Note (together
with any other instruments executed in connection herewith or therewith) have been duly executed and delivered by the Company by its authorized
representative, and such authorized representative is the true and official representative with authority to sign this Agreement, the
Note and the other instruments documents executed in connection herewith or therewith and bind the Company accordingly, and (iv) this
Agreement constitutes, and upon execution and delivery by the Company of the Note, each of such instruments will constitute, a legal,
valid and binding obligation of the Company, enforceable against the Company in accordance with their terms.


 


c. Capitalization;
Governing Documents. As of September 22, 2022, the authorized capital stock of the Company consists of: 200,000,000 authorized shares
of Common Stock, of which 95,964,484 shares were issued and outstanding, and 1,005,000 authorized shares of preferred stock, of which
1,000 shares of Series A preferred stock and 2,510 shares of Series B preferred stock were issued and outstanding. All of such outstanding
shares of capital stock of the Company and the Conversion Shares, and Exercise Shares are, or upon issuance will be, duly authorized,
validly issued, fully paid and non-assessable. No shares of capital stock of the Company are subject to preemptive rights or any other
similar rights of the shareholders of the Company or any liens or encumbrances imposed through the actions or failure to act of the Company.
As of the effective date of this Agreement, other than as publicly announced prior to such date and reflected in the SEC Documents of
the Company (i) there are no outstanding options, warrants, scrip, rights to subscribe for, puts, calls, rights of first refusal, agreements,
understandings, claims or other commitments or rights of any character whatsoever relating to, or securities or rights convertible into
or exchangeable for any shares of capital stock of the Company or any of its Subsidiaries, or arrangements by which the Company or any
of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries, (ii)
there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of
its or their securities under the 1933 Act and (iii) there are no anti-dilution or price adjustment provisions contained in any security
issued by the Company (or in any agreement providing rights to security holders) that will be triggered by the issuance of any of the
Securities. The Company has furnished or made available (which may be through the SEC Documents) to the Buyer true and correct copies
of the Company’s Certificate of Incorporation as in effect on the date hereof (“Certificate of Incorporation”), the
Company’s By-laws, as in effect on the date hereof (the “By-laws”), and the terms of all securities convertible into
or exercisable for Common Stock of the Company and the material rights of the holders thereof in respect thereto.


 






    4


     


    

 


d. Issuance
of Conversion Shares and Exercise Shares. The Conversion Shares and Exercise Shares are duly authorized and reserved for issuance
(or will be reserved for issuance as provided in the Note and Warrant) and, upon conversion of the Note and/or exercise of the Warrants
in accordance with its terms, will be validly issued, fully paid and non-assessable, and free from all taxes, liens, claims and encumbrances
with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders of the Company
and will not impose personal liability upon the holder thereof.


 


e. Issuance
of Warrants. The issuance of the Warrants are duly authorized and will be validly issued, fully paid and non-assessable, and free
from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other
similar rights of shareholders of the Company and will not impose personal liability upon the holder thereof.


 


f. Acknowledgment
of Dilution. The Company understands and acknowledges the potentially dilutive effect of the Conversion Shares and Exercise Shares
to the Common Stock upon the conversion of the Note and/or exercise of the Warrants. The Company further acknowledges that its obligation
to issue, upon conversion of the Note and/or exercise of the Warrants, the Conversion Shares and/or Exercise Shares in accordance with
the terms thereof, are absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests
of other shareholders of the Company.


 


g. No
Conflicts. The execution, delivery and performance of this Agreement and the Note by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance and reservation for issuance of the Conversion
Shares and Exercise Shares) will not (i) conflict with or result in a violation of any provision of the Certificate of Incorporation or
By-laws, or (ii) violate or conflict with, or result in a breach of any provision of, or constitute a default (or an event which with
notice or lapse of time or both could become a default) under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, note, evidence of indebtedness, indenture, patent, patent license 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
federal and state securities laws and regulations and regulations of any self-regulatory organizations to which the Company or its securities
is subject) 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 (except for such conflicts, defaults, terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect), or (iv) trigger any anti-dilution and/or ratchet provision contained
in any other contract in which the Company is a party thereto or any security issued by the Company. Neither the Company nor any of its
Subsidiaries is in violation of its Certificate of Incorporation, By-laws or other organizational documents and neither the Company nor
any of its Subsidiaries is in default (and no event has occurred which with notice or lapse of time or both could put the Company or any
of its Subsidiaries in default) under, and neither the Company nor any of its Subsidiaries has taken any action or failed to take any
action that would 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 by which any property or assets of the Company or any of its Subsidiaries
is bound or affected, except for possible defaults as would not, individually or in the aggregate, have a Material Adverse Effect. The
businesses of the Company and its Subsidiaries, if any, are not being conducted, and shall not be conducted so long as the Buyer owns
any of the Securities, in violation of any law, ordinance or regulation of any governmental entity. Except as specifically contemplated
by this Agreement and as required under the 1933 Act and any applicable state securities laws, the Company is not required to obtain any
consent, authorization or order of, or make any filing or registration with, any court, governmental agency, regulatory agency, self-regulatory
organization or stock market or any third party in order for it to execute, deliver or perform any of its obligations under this Agreement
and the Note in accordance with the terms hereof or thereof or to issue and sell the Note in accordance with the terms hereof and, upon
conversion of the Note and/or exercise of the Warrants, issue Conversion Shares and/or Exercise Shares as applicable. All consents, authorizations,
orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence have been obtained or effected
on or prior to the date hereof. The Company is not in violation of the listing requirements of the Principal Market (as defined herein)
and does not reasonably anticipate that the Common Stock will be delisted by the Principal Market in the foreseeable future. The Company
and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing. The “Principal Market”
shall mean the principal securities exchange or trading market where such Common Stock is listed or traded, including but not limited
to any tier of the OTC Markets, any tier of the NASDAQ Stock Market (including NASDAQ Capital Market), or the NYSE American, or any successor
to such markets.


 






    5


     


    

 


h. SEC
Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “1934 Act”)
(all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto
and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the “SEC
Documents”). 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 light of the circumstances under which they were made, not
misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable
law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates,
the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in
accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present
in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof
and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments). Except as set forth in the financial statements of the Company included in the SEC Documents, the
Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent
to June 30, 2022, and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under
generally accepted accounting principles to be reflected in such financial statements, which, individually or in the aggregate, are not
material to the financial condition or operating results of the Company. The Company is subject to the reporting requirements of the 1934
Act. The Company has never been a “shell company” as described in Rule 144(i)(1)(i).


 


i. Absence
of Certain Changes. Since June 30, 2022, there has been no material adverse change and no material adverse development in the assets,
liabilities, business, properties, operations, financial condition, results of operations, prospects or 1934 Act reporting status of the
Company or any of its Subsidiaries.


 


j. Absence
of Litigation. There is no action, suit, claim, proceeding, inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against
or affecting the Company or any of its Subsidiaries, or their officers or directors in their capacity as such, that could have a Material
Adverse Effect. The SEC Documents contain a complete list and summary description of any pending or, to the knowledge of the Company,
threatened proceeding against or affecting the Company or any of its Subsidiaries, without regard to whether it would have a Material
Adverse Effect. The Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing.


 


k. Intellectual
Property. The Company and each of its Subsidiaries owns or possesses the requisite licenses or rights to use all patents, patent applications,
patent rights, inventions, know-how, trade secrets, trademarks, trademark applications, service marks, service names, trade names and
copyrights (“Intellectual Property”) necessary to enable it to conduct its business as now operated (and, as presently contemplated
to be operated in the future); there is no claim or action by any person pertaining to, or proceeding pending, or to the Company’s
knowledge threatened, which challenges the right of the Company or of a Subsidiary with respect to any Intellectual Property necessary
to enable it to conduct its business as now operated (and, as presently contemplated to be operated in the future); to the best of the
Company’s knowledge, the Company’s or its Subsidiaries’ current and intended products, services and processes do not
infringe on any Intellectual Property or other rights held by any person; and the Company is unaware of any facts or circumstances which
might give rise to any of the foregoing. The Company and each of its Subsidiaries have taken reasonable security measures to protect the
secrecy, confidentiality and value of their Intellectual Property.


 






    6


     


    

 


l. No
Materially Adverse Contracts, Etc. Neither the Company nor any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the judgment of the Company’s officers has or is expected
in the future to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any contract or agreement
which in the judgment of the Company’s officers has or is expected to have a Material Adverse Effect.


 


m. Tax
Status. The Company and each of its Subsidiaries has made or filed all federal, state and foreign income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each
of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and
has 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 has set aside on its books provisions 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 know of no
basis for any such claim. The Company has not executed a waiver with respect to the statute of limitations relating to the assessment
or collection of any foreign, federal, state or local tax. None of the Company’s tax returns is presently being audited by any taxing
authority.


 


n. Transactions
with Affiliates. Except as disclosed in the SEC Documents or for arm’s length transactions pursuant to which the Company or
any of its Subsidiaries makes payments in the ordinary course of business upon terms no less favorable than the Company or any of its
Subsidiaries could obtain from third parties and other than the grant of stock options described in the SEC Documents, none of the officers,
directors, or employees of the Company is presently a party to any transaction with the Company or any of its Subsidiaries (other than
for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing
of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer,
director, or any such employee has a substantial interest or is an officer, director, trustee or partner.


 


o. Disclosure.
All information relating to or concerning the Company or any of its Subsidiaries set forth in this Agreement and provided to the Buyer
pursuant to Section 2(d) hereof and otherwise in connection with the transactions contemplated hereby is true and correct in all material
respects and the Company has not omitted to state any material fact necessary in order to make the statements made herein or therein,
in light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or exists with respect
to the Company or any of its Subsidiaries or its or their business, properties, prospects, operations or financial conditions, which,
under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly
announced or disclosed (assuming for this purpose that the Company’s reports filed under the 1934 Act are being incorporated into
an effective registration statement filed by the Company under the 1933 Act).


 


p. Acknowledgment
Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely in the capacity
of arm’s length purchaser with respect to this Agreement and the transactions contemplated hereby. The Company further acknowledges
that the Buyer is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement
and the transactions contemplated hereby and any statement made by the Buyer or any of its respective representatives or agents in connection
with this Agreement and the transactions contemplated hereby is not advice or a recommendation and is merely incidental to the Buyer’s
purchase of the Securities. The Company further represents to the Buyer that the Company’s decision to enter into this Agreement
has been based solely on the independent evaluation of the Company and its representatives.


 






    7


     


    

 


q. No
Integrated Offering. Neither the Company, nor any of its affiliates, nor any person acting on its or their behalf, has directly or
indirectly made any offers or sales in any security or solicited any offers to buy any security under circumstances that would require
registration under the 1933 Act of the issuance of the Securities to the Buyer. The issuance of the Securities to the Buyer will not be
integrated with any other issuance of the Company’s securities (past, current or future) for purposes of any shareholder approval
provisions applicable to the Company or its securities.


 


r. No
Brokers; No Solicitation. Except with respect to J. H. Darbie & Co., a registered broker-dealer (CRD#: 43520), and Spencer Clarke,
a registered broker-dealer, the Company has taken no action which would give rise to any claim by any person for brokerage commissions,
transaction fees or similar payments relating to this Agreement or the transactions contemplated hereby. The Company acknowledges and
agrees that neither the Buyer nor its employee(s), member(s), beneficial owner(s), or partner(s) solicited the Company to enter into this
Agreement and consummate the transactions described in this Agreement.


 


s. Permits;
Compliance. The Company and each of its Subsidiaries is in possession of all franchises, grants, authorizations, licenses, permits,
easements, variances, exemptions, consents, certificates, approvals and orders necessary to own, lease and operate its properties and
to carry on its business as it is now being conducted (collectively, the “Company Permits”), and there is no action pending
or, to the knowledge of the Company, threatened regarding suspension or cancellation of any of the Company Permits. Neither the Company
nor any of its Subsidiaries is in conflict with, or in default or violation of, any of the Company Permits, except for any such conflicts,
defaults or violations which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. Since
June 30, 2022, neither the Company nor any of its Subsidiaries has received any notification with respect to possible conflicts, defaults
or violations of applicable laws, except for notices relating to possible conflicts, defaults or violations, which conflicts, defaults
or violations would not have a Material Adverse Effect.


 


t. Environmental
Matters.


 


(i) There
are, to the Company’s knowledge, with respect to the Company or any of its Subsidiaries or any predecessor of the Company, no past
or present violations of Environmental Laws (as defined below), releases of any material into the environment, actions, activities, circumstances,
conditions, events, incidents, or contractual obligations which may give rise to any common law environmental liability or any liability
under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 or similar federal, state, local or foreign laws
and neither the Company nor any of its Subsidiaries has received any notice with respect to any of the foregoing, nor is any action pending
or, to the Company’s knowledge, threatened in connection with any of the foregoing. 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.


 


(ii) Other
than those that are or were stored, used or disposed of in compliance with applicable law, no Hazardous Materials are contained on or
about any real property currently owned, leased or used by the Company or any of its Subsidiaries, and no Hazardous Materials were released
on or about any real property previously owned, leased or used by the Company or any of its Subsidiaries during the period the property
was owned, leased or used by the Company or any of its Subsidiaries, except in the normal course of the Company’s or any of its
Subsidiaries’ business.


 






    8


     


    

 


(iii) There
are no underground storage tanks on or under any real property owned, leased or used by the Company or any of its Subsidiaries that are
not in compliance with applicable law.


 


u. Title
to Property. The Company and its Subsidiaries have good and marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free
and clear of all liens, encumbrances and defects except such as are described in Schedule 3(u), if attached hereto, or such as would not
have a Material Adverse Effect. Any real property and facilities held under lease by the Company and its Subsidiaries are held by them
under valid, subsisting and enforceable leases with such exceptions as would not have a Material Adverse Effect.


 


v. 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 any reason to believe that it will not be able 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. Upon written request the Company will provide to the Buyer true and correct copies
of all policies relating to directors’ and officers’ liability coverage, errors and omissions coverage, and commercial general
liability coverage.


 


w. Internal
Accounting Controls. Except as may be disclosed in the SEC Documents, the Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient, in the judgment of the Company’s board of directors, to provide reasonable assurance 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 generally accepted accounting principles and to maintain
asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization
and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.


 


x. Foreign
Corrupt Practices. Neither the Company, nor any of its Subsidiaries, nor any director, officer, agent, employee or other person acting
on behalf of the Company or any Subsidiary has, in the course of his actions for, or on behalf of, the Company, used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision
of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment to any foreign or domestic government official or employee.


 


y. Solvency.
The Company has no information that would lead it to reasonably conclude that the Company would not, after giving effect to the transaction
contemplated by this Agreement, have the ability to, nor does it intend to take any action that would impair its ability to, pay its debts
from time to time incurred in connection therewith as such debts mature.


 


z. No
Investment Company. The Company is not, and upon the issuance and sale of the Securities as contemplated by this Agreement will not
be an “investment company” required to be registered under the Investment Company Act of 1940 (an “Investment Company”).
The Company is not controlled by an Investment Company.


 


aa. No 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.


 


bb. No Disqualification
Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the
Company participating in the offering hereunder, 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”) 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.


 






    9


     


    

 


cc. Manipulation of
Price. The Company has not, and to its knowledge no one acting on its behalf has: (i) taken, directly or indirectly, any action designed
to cause or to result, or that could reasonably be expected to cause or result, in the stabilization or manipulation of the price of any
security of the Company 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, or (iii) paid or agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.


 


dd. 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.


 


ee. Illegal or Unauthorized
Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, 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.


 


ff. Breach of Representations
and Warranties by the Company. The Company agrees that if the Company breaches any of the representations or warranties set forth
in this Section 3 and in addition to any other remedies available to the Buyer pursuant to this Agreement, it will be considered an Event
of Default under Section 3.4 of the Note.


 


4. ADDITIONAL
COVENANTS, AGREEMENTS AND ACKNOWLEDGEMENTS.


 


a. Best
Efforts. The parties shall use their best efforts to satisfy timely each of the conditions described in Section 6 and 7 of this Agreement.


 


b. Form
D; Blue Sky Laws. The Company agrees to file a Form D with respect to the Securities if required under Regulation D and to provide
a copy thereof to the 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 to qualify the Securities for sale to the Buyer at the applicable 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 Buyer on or prior to the Closing Date.


 


c. Use
of Proceeds. The Company shall use the proceeds for business development, working capital, operations and required debt service, and
not for any other purpose, including but not limited to (i) the repayment of any indebtedness owed to officers, directors or employees
of the Company or their affiliates, (ii) the repayment of any debt issued in corporate finance transactions (other than required payments
to the Existing Lenders (as defined in this Agreement)), (iii) any loan to or investment in any other corporation, partnership, enterprise
or other person (except in connection with the Company’s currently existing operations), (iv) any loan, credit, or advance to any
officers, directors, employees, or affiliates of the Company, or (v) in violation or contravention of any applicable law, rule or regulation.


 






    10


     


    

 


d. Right
of Participation and First Refusal.


 


(i) Other
than arrangements that are in place or disclosed in SEC Documents prior to the date of this Agreement, from the date of this Agreement
until the Note is extinguished in its entirety, the Company will not, (i) directly or indirectly, offer, sell, grant any option to purchase,
or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition of) any of its or its Subsidiaries’
debt, equity, or equity equivalent securities, including without limitation any debt, preferred shares or other instrument or security
that is, at any time during its life and/or under any circumstances, convertible into, exchangeable, or exercisable for Common Stock (any
such offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”) or (ii) enter into any
definitive agreement with regard to the foregoing, in each case unless the Company shall have first complied with this Section 4(d).


 


(ii) The
Company shall deliver to the Buyer an irrevocable written notice (the “Offer Notice”) of any proposed or intended Subsequent
Placement, which shall (w) identify and describe the Subsequent Placement, (x) describe the price and other terms upon which they are
to be issued, sold or exchanged, and the number or amount of the securities in the Subsequent Placement to be issued, sold, or exchanged
and (y) offer to issue and sell to or exchange with the Buyer at least one hundred percent (100%) of the securities in the Subsequent
Placement (in each case, an “Offer”).


 


(iii) To
accept an Offer, in whole or in part, the Buyer must deliver a written notice (the “Notice of Acceptance”) to the Company
prior to the end of the fifth (5th) Trading Day (as defined in the Note) after the Buyer’s receipt of the Offer Notice (the “Offer
Period”), setting forth the amount that the Buyer elects to purchase (the “Subscription Amount”). The Company shall
complete the Subsequent Placement and issue and sell the Subscription Amount to the Buyer upon terms and conditions (including, without
limitation, unit prices and interest rates) set forth in the Offer Notice, unless a change to such terms and conditions is agreed to in
writing between the Company and Buyer.


 


(iv) Notwithstanding
anything to the contrary contained herein, if the Company desires to modify or amend the terms or conditions of a Subsequent Placement
at any time after the Offer Notice is given to Buyer (provided, however, that such modification or amendment to the terms or conditions
cannot occur during any Offer Period), the Company shall deliver to the Buyer a new Offer Notice and the Offer Period of such new Offer
shall expire at the end of the fifth (5th) Trading Day after the Buyer’s receipt of such new Offer Notice.


 


(v) Notwithstanding
anything to the contrary herein, the terms and conditions of this Section 4(d) of this Agreement shall not apply to any of the following
issuances of securities (collectively, the “Excluded Offerings”): (A) upon exercise of the Warrants; (B) pursuant to the issuance,
vesting and/or exercise of options, warrants, restricted stock, restricted stock units or other common stock purchase rights issued (or
to be issued) to employees, officers or directors of, or consultants or advisors to, the Company for compensatory purposes pursuant to
any stock purchase plan, stock option plan, equity incentive plan or other plan or arrangement approved by the Board of Directors (or
the Compensation Committee thereof) at any time; (C) pursuant to the exercise or conversion of preferred stock, options, warrants or any
evidence of indebtedness, shares of capital stock (other than Common Stock) or other securities convertible into or exchangeable for Common
Stock outstanding (or in the case of warrants underlying outstanding preferred stock, which may be issued and outstanding) as of the date
hereof and as disclosed in the SEC Documents prior to the date hereof; (D) in connection with the acquisition of all or part of another
entity by stock acquisition, merger, consolidation or other reorganization, or by the purchase of all or part of the assets of such other
entity (including securities issued to persons formerly employed by such other entity and subsequently hired by the Company and to any
brokers or finders in connection therewith); (E) in connection with strategic transactions approved by the Board of Directors (provided
such transactions is not primarily for the purpose of raising capital); (F) to bona fide commercial partners, or lessors in connection
with credit arrangements, equipment financings or similar transactions approved by the Board of Directors; (G) in connection with the
Company’s acquisition, joint-venture, licensing or business transaction of intellectual property assets from any individuals or
entities approved by the Board of Directors (provided such transactions is not primarily for the purpose of raising capital); (H) shares
of Common Stock issued pursuant to equipment lease arrangements or financings from a bank approved by the Board of Directors of the Company;
and (I) any units, shares of common stock, warrants or other securities issued or issuable pursuant to the Company’s Regulation
A+ offering as the same may be amended from time to time, and any shares of Common Stock issuable upon conversion thereof (the “Reg
A+ Offering”).


 






    11


     


    




 


e. Usury.
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will
resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter
in force, in connection with any action or proceeding that may be brought by the Buyer in order to enforce any right or remedy under this
Agreement, the Note and any document, agreement or instrument contemplated thereby. Notwithstanding any provision to the contrary contained
in this Agreement, the Note and any document, agreement or instrument contemplated thereby, it is expressly agreed and provided that the
total liability of the Company under this Agreement, the Note or any document, agreement or instrument contemplated thereby for payments
which under applicable law are in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the
“Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both
of them, when aggregated with any other sums which under applicable law in the nature of interest that the Company may be obligated to
pay under this Agreement, the Note and any document, agreement or instrument contemplated thereby exceed such Maximum Rate. It is agreed
that if the maximum contract rate of interest allowed by law applicable to this Agreement, the Note and any document, agreement or instrument
contemplated thereby is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum
contract rate of interest allowed by law will be the Maximum Rate applicable to this Agreement, the Note and any document, agreement or
instrument contemplated thereby from the effective date thereof forward, unless such application is precluded by applicable law. If under
any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to the Buyer with respect to indebtedness
evidenced by this Agreement, the Note and any document, agreement or instrument contemplated thereby, such excess shall be applied by
the Buyer to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to
be at the Buyer’s election.


 


f. Restriction
on Activities. Commencing as of the date first above written, and until the earlier of payment of the Note in full or full conversion
of the Note, the Company shall not, directly or indirectly, without the Buyer’s prior written consent, which consent shall not be
unreasonably withheld: (a) change the nature of its business; or (b) sell, divest, acquire, change the structure of any material assets
other than in the ordinary course of business.


 


g. Listing.
The Company will, so long as the Buyer owns any of the Securities, maintain the listing and trading of its Common Stock on the Principal
Market or any equivalent replacement exchange or electronic quotation system (including but not limited to the Pink Sheets electronic
quotation system) and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or
rules of the Financial Industry Regulatory Authority (“FINRA”) and such exchanges, as applicable. The Company shall promptly
provide to the Buyer copies of any notices it receives from the Principal Market and any other exchanges or electronic quotation systems
on which the Common Stock is then traded regarding the continued eligibility of the Common Stock for listing on such exchanges and quotation
systems.


 


h. Corporate
Existence. The Company will, so long as the Buyer beneficially owns any of the Securities, maintain its corporate existence and shall
not sell all or substantially all of the Company’s assets, except in the event of a merger or consolidation or sale of all or substantially
all of the Company’s assets, where the surviving or successor entity in such transaction (i) assumes the Company’s obligations
hereunder and under the agreements and instruments entered into in connection herewith and (ii) is a publicly traded corporation whose
Common Stock is listed for trading or quotation on the Principal Market, any tier of the NASDAQ Stock Market, the New York Stock Exchange
or the NYSE MKT.


 


i. No
Integration. The Company shall not make any offers or sales of any security (other than the Securities) under circumstances that would
require registration of the Securities being offered or sold hereunder under the 1933 Act or cause the offering of the Securities to be
integrated with any other offering of securities by the Company for the purpose of any stockholder approval provision applicable to the
Company or its securities.


 






    12


     


    

 


j. Compliance
with 1934 Act; Public Information Failures. For so long as the Buyer beneficially owns the Note, Warrants, Conversion Shares, or any
Exercise Shares, the Company shall comply with the reporting requirements of the 1934 Act; and the Company shall continue to be subject
to the reporting requirements of the 1934 Act. During the period that the Buyer beneficially owns the Note, 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 requirements under Rule 144(c) or (ii) if the Company has ever been an issuer described in Rule 144(i)(1)(i) or becomes such
an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (each, a “Public Information
Failure”) then, as partial relief for the damages to the Buyer 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 pursuant to this Agreement, the Note, or at law or
in equity), the Company shall pay to the Buyer an amount in cash equal to three percent (3%) of the Purchase Price on each of the day
of a Public Information Failure and on every thirtieth day (pro rated for periods totaling less than thirty days) thereafter until the
date such Public Information Failure is cured. The payments to which a holder shall be entitled pursuant to this Section 4(k) are referred
to herein as “Public Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (i)
the last day of the calendar month during which such Public Information Failure Payments are incurred and (iii) the third business day
after the event or failure giving rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public
Information Failure Payments in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 5% per month
(prorated for partial months) until paid in full.


 


k. Acknowledgement
Regarding Buyer’s Trading Activity. Until the Note is fully repaid or fully converted, the Buyer shall not effect any “short
sale” (as such term is defined in Rule 200 of Regulation SHO of the 1934 Act) of the Common Stock which establishes a net short
position with respect to the Common Stock.


 


l. Legal
Counsel Opinions. Upon the request of the Buyer from to time to time, the Company shall be responsible (at its cost) for promptly
supplying to the Company’s transfer agent and the Buyer a customary legal opinion letter of its counsel (the “Legal Counsel
Opinion”) to the effect that the resale of the Conversion Shares and/or Exercise Shares by the Buyer or its affiliates, successors
and assigns is exempt from the registration requirements of the 1933 Act pursuant to Rule 144 (provided the requirements of Rule 144 are
satisfied by the delivery to the Company of customary representations letters to that effect and provided the Conversion Shares and/or
Exercise Shares are not then registered under the 1933 Act for resale pursuant to an effective registration statement) or other applicable
exemption (provided the requirements of such other applicable exemption are satisfied by the delivery to the Company of customary representations
letters to that effect). In addition, the Buyer may (at the Company’s cost) at any time secure its own legal counsel to issue the
Legal Counsel Opinion, and the Company will instruct its transfer agent to accept such opinion. The Company hereby agrees that it may
never take the position that it is a “shell company” in connection with its obligations under this Agreement or otherwise.


 


m. Piggy-Back
Registration Rights. The Company hereby grants to the Buyer the piggy-back registration rights set forth in Exhibit B hereto.


 


n. Most
Favored Nation. While the Note or any principal amount, interest or fees or expenses due thereunder remain outstanding and unpaid,
the Company shall not enter into any public or private offering of its securities (including securities convertible into shares of Common
Stock) with any individual or entity (an “Other Investor”) that has the effect of establishing rights or otherwise benefiting
such Other Investor in a manner more favorable in any material respect to such Other Investor (even if the Other Investor does not receive
the benefit of such more favorable term until a default occurs under such other security) than the rights and benefits established in
favor of the Buyer by this Agreement or the Note unless, in any such case, the Buyer has been provided with such rights and benefits pursuant
to a definitive written agreement or agreements between the Company and the Buyer. Notwithstanding anything to the contrary set forth
in this Agreement, this Section 4(n) of this Agreement shall not apply to the transactions consummated pursuant to the Company’s
securities purchase agreement entered into as of December 10, 2021, as amended, with Puritan Partners LLC, a New York limited liability
company (“Puritan Partners”) and Verition Multi-Strategy Master Fund Ltd. (“Verition,” and collectively with Puritan
Partners, the “Existing Lenders”) unless the transaction documents between the Company and any of the Existing Lenders are
amended or modified on or after the date of this Agreement. Further, this Section 4(n) of this Agreement shall not apply to the issuance
of Common Stock (or warrants if sold with the Common Stock as a component of units) pursuant to a Regulation A offering.


 






    13


     


    

 


o. Subsequent
Variable Rate Transactions. From the date hereof until such time as the Note is fully converted or fully repaid, the Company shall
be prohibited from effecting or entering into an agreement involving a Variable Rate Transaction. “Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or
exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or
exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the shares of Common Stock
at any time after the initial issuance of such debt or equity securities or (B) with a conversion, exercise or exchange price that is
subject to being reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified
or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into
any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined
price. The Buyer shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be
in addition to any right to collect damages. This Section 4(o) shall not apply to the Company’s existing obligations as of the date
hereof with the Existing Lenders.


 


p. Non-Public
Information. Except as may be required pursuant to Section 4(d), the Company covenants and agrees that neither it, nor any other person
acting on its behalf will provide the Buyer or its agents or counsel with any information that constitutes, or the Company reasonably
believes constitutes, material non-public information, unless prior thereto the Buyer shall have consented to the receipt of such information
and agreed with the Company to keep such information confidential. The Company understands and confirms that the Buyer shall be relying
on the foregoing covenant in effecting transactions in securities of the Company. Except as may be required pursuant to Section 4(d),
to the extent that the Company delivers any material, non-public information to the Buyer without such Buyer’s consent, the Company
hereby covenants and agrees that such Buyer shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any
of their respective officers, directors, agents, employees or affiliates, not to trade on the basis of, such material, non- public information,
provided that the Buyer shall remain subject to applicable law. To the extent that any notice provided, information provided, or any other
communications made by the Company, to the Buyer, constitutes or contains material non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously file such notice or other material information with the SEC pursuant to a Current Report
on Form 8-K. In. addition to any other remedies provided by this Agreement or the related transaction documents, if the Company provides
any material non-public information to the Buyer without their prior written consent, and it fails to immediately (no later than that
business day) file a Form 8-K disclosing this material non-public information, it shall pay the Buyer as partial liquidated damages and
not as a penalty a sum equal to $3,000 per day beginning with the day the information is disclosed to the Buyer and ending and including
the day the Form 8-K disclosing this information is filed.


 


q. D&O
Insurance. In the event the Company does not so have as of the date hereof, within 60 calendar days of the Closing, the Company shall
purchase director and officer insurance on behalf of the Company's (including its subsidiary) officers and directors for a period of 18
months after the Closing with respect to any losses, claims, damages, liabilities, costs and expense in connection with any actual or
threatened claim or proceeding that is based on, or arises out of their status as a director or officer of the Company. The insurance
policy shall provide for two years of tail coverage.


 


r. Breach
of Covenants. The Company acknowledges and agrees that if the Company breaches any of the covenants set forth in this Section 4, in
addition to any other remedies available to the Buyer pursuant to this Agreement, it will be considered an Event of Default under Section
3.3 of the Note.


 






    14


     


    

 


5. Transfer
Agent Instructions. The Company shall issue irrevocable instructions to the Company’s transfer agent to issue certificates and/or
issue shares electronically at the Buyer’s option, registered in the name of the Buyer or its nominee, upon conversion of the Note
and/or exercise of the Warrants, the Conversion Shares and Exercise Shares, in such amounts as specified from time to time by the Buyer
to the Company in accordance with the terms thereof (the “Irrevocable Transfer Agent Instructions”). In the event that the
Company proposes to replace its transfer agent, the Company shall provide, prior to the effective date of such replacement, a fully executed
Irrevocable Transfer Agent Instructions in a form as initially delivered pursuant to this Agreement (including but not limited to the
provision to irrevocably reserved shares of Common Stock in the Reserved Amount (as defined in the Note)) signed by the successor transfer
agent to the Company and the Company. Prior to registration of the Conversion Shares and/or Exercise Shares under the 1933 Act or the
date on which the Conversion Shares and/or Exercise Shares may be sold pursuant to Rule 144, Rule 144A, Regulation S, or other applicable
exemption without any restriction as to the number of Securities as of a particular date that can then be immediately sold, all such certificates
or book entry shares shall bear the restrictive legend specified in Section 2(g) of this Agreement. The Company warrants that: (i) no
instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5 will be given by the Company to its transfer
agent and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided
in this Agreement and the Note; (ii) it will not direct its transfer agent not to transfer or delay, impair, and/or hinder its transfer
agent in transferring (or issuing)(electronically or in certificated form) any certificate for Securities to be issued to the Buyer upon
conversion of or otherwise pursuant to the Note and/or upon exercise of or otherwise pursuant to the Warrants as and when required by
the Note and this Agreement; (iii) it will not fail to remove (or directs its transfer agent not to remove or impairs, delays, and/or
hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on
any certificate for any Securities issued to the Buyer upon conversion of or otherwise pursuant to the Note and/or upon exercise of or
otherwise pursuant to the Warrants as and when required by the Note, Warrants, and/or this Agreement and (iv) it will provide any required
corporate resolutions and issuance approvals to its transfer agent within one (1) business day of each conversion of the Note and/or exercise
of the Warrants. Nothing in this Section shall affect in any way the Buyer’s obligations and agreement set forth in Section 2(g)
hereof to comply with all applicable prospectus delivery requirements, if any, upon re-sale of the Securities. If the Buyer provides the
Company, at the cost of the Company, with (i) an opinion of counsel in form, substance and scope customary for opinions in comparable
transactions, to the effect that a public sale or transfer of such Securities may be made without registration under the 1933 Act and
such sale or transfer is effected or (ii) the Buyer provides reasonable assurances that the Securities can be sold pursuant to 144, Rule
144A, Regulation S, or other applicable exemption, the Company shall permit the transfer, and, in the case of the Securities, promptly
instruct its transfer agent to issue one or more certificates, free from restrictive legend, in such name and in such denominations as
specified by the Buyer. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer,
by vitiating the intent and purpose of the transactions contemplated hereby. Accordingly, the Company acknowledges that the remedy at
law for a breach of its obligations under this Section 5 may be inadequate and agrees, in the event of a breach or threatened breach by
the Company of the provisions of this Section, that the Buyer shall be entitled, in addition to all other available remedies, to an injunction
restraining any breach and requiring immediate transfer, without the necessity of showing economic loss and without any bond or other
security being required.


 


6. Conditions
to the Company’s Obligation to Sell. The obligation of the Company hereunder to issue and sell the Note to the Buyer at the
Closing is subject to the satisfaction, at or before the Closing Date, of each of the following conditions thereto, 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:


 


a. The
Buyer shall have executed this Agreement and delivered the same to the Company.


 


b. The
Buyer shall have delivered the Purchase Price in accordance with Section 1(b) above.


 


c. The
representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the
Closing Date, as though made at that time (except for representations and warranties that speak as of a specific date), and the 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 the Buyer at or prior to the Closing Date.


 


d. No
litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.


 






    15


     


    

 


7. Conditions
to The Buyer’s Obligation to Purchase. The obligation of the Buyer hereunder to purchase the Note, on the Closing Date, is subject
to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Buyer’s
sole benefit and may be waived by the Buyer at any time in its sole discretion:


 


a. The
Company shall have executed this Agreement and delivered the same to the Buyer.


 


b. The
Company shall have delivered to the Buyer the duly executed Note in such denominations as the Buyer shall request and in accordance with
Section 1(b) above.


 


c. The
Company shall have delivered to the Buyer the Warrants.


 


d. The
Irrevocable Transfer Agent Instructions, in form and substance satisfactory to the Buyer, shall have been delivered to and acknowledged
in writing by the Company’s Transfer Agent.


 


e. The
representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of Closing
Date, as though made at such time (except for representations and warranties that speak as of a specific date) and the Company 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 the Company at or prior to the Closing Date.


 


f. No
litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over
the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement.


 


g. No
event shall have occurred which could reasonably be expected to have a Material Adverse Effect on the Company including but not limited
to a change in the 1934 Act reporting status of the Company or the failure of the Company to be timely in its 1934 Act reporting obligations.


 


h. Trading
in the Common Stock on the Principal Market shall not have been suspended by the SEC, FINRA or the Principal Market.


 


i. The
Company shall have delivered to the Buyer resolutions adopted by the Company’s Board of Directors at a duly called meeting or by
unanimous written consent authorizing this Agreement and all other documents, instruments and transactions contemplated hereby.


 


8. Governing
Law; Miscellaneous.


 


a. Governing
Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada without regard to
principles of conflicts of laws. Any action brought by either party against the other concerning the transactions contemplated by this
Agreement, the Note, or any other agreement, certificate, instrument or document contemplated hereby shall be brought only in the state
courts located in the Commonwealth of Massachusetts or in the federal courts located in the Commonwealth of Massachusetts. The parties
to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert
any defense based on lack of jurisdiction or venue or based upon forum non conveniens. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY. The prevailing party shall be entitled to recover from the
other party its reasonable attorney’s fees and costs. Each party hereby irrevocably waives personal service of process and consents
to process being served in any suit, action or proceeding in connection with this Agreement, the Note, or any other agreement, certificate,
instrument or document contemplated hereby or thereby by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for 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 other manner permitted by law.


 






    16


     


    

 


b. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party.
A facsimile or .pdf signature shall be considered due execution and shall be binding upon the signatory thereto with the same force and
effect as if the signature were an original, not a facsimile or .pdf signature. Delivery of a counterpart signature hereto by facsimile
or email/.pdf transmission shall be deemed validly delivery thereof.


 


c. Construction;
Headings. This Agreement shall be deemed to be jointly drafted by the Company and the Buyer and shall not be construed against any
person as the drafter hereof. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect
the interpretation of, this Agreement.


 


d. Severability.
In the event that any provision of this Agreement, the Note, or any other agreement or instrument delivered in connection herewith is
invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove
invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of this Agreement, the Note,
or any other agreement, certificate, instrument or document contemplated hereby or thereby.


 


e. Entire
Agreement; Amendments. This Agreement, the Note, and the instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor
the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement or
any agreement or instrument contemplated hereby may be waived or amended other than by an instrument in writing signed by the Buyer.


 


f. Notices.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be transmitted by e-mail, addressed as set forth below or to such other address as such party
shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall
be deemed effective upon delivery by e-mail, with accurate confirmation generated by the transmitting machine, at the address or number
designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business
day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received).
The addresses for such communications shall be:


 


If to the Company, to:


 


NIGHTFOOD HOLDINGS, INC.


520 White Plains Road, Suite
500


Tarrytown, New York 10591


Attention: Sean Folkson


e-mail: sean@nightfood.com


 


If to the Buyer:


 


MAST HILL FUND, L.P.


48 Parker Road


Wellesley, MA 02482


e-mail: admin@masthillfund.com


 






    17


     


    

 


g. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns. The Company
shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Buyer. The Buyer may assign
its rights hereunder to any “accredited investor” (as defined in Rule 501(a) of the 1933 Act) in a private transaction from
the Buyer or to any of its “affiliates,” as that term is defined under the 1934 Act, without the consent of the Company.


 


h. 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.


 


i. Survival.
The representations and warranties of the Company and the agreements and covenants set forth in this Agreement shall survive the closing
hereunder notwithstanding any due diligence investigation conducted by or on behalf of the Buyer. The Company agrees to indemnify and
hold harmless the Buyer and all their officers, directors, employees and agents for loss or damage arising as a result of or related to
any breach or alleged breach by the Company of any of its representations, warranties and covenants set forth in this Agreement or any
of its covenants and obligations under this Agreement, including advancement of expenses as they are incurred.


 


j. Publicity.
The Company, and the Buyer shall have the right to review a reasonable period of time before issuance of any press releases, SEC,
Principal Market or FINRA filings, or any other public statements with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, without the prior approval of the Buyer, to make any press release or SEC, Principal
Market (or other applicable trading market) or FINRA filings with respect to such transactions as is required by applicable law and regulations
(although the Buyer shall be consulted by the Company in connection with any such press release prior to its release and shall be provided
with a copy thereof and be given an opportunity to comment thereon).


 


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


 


l. No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party.


 


m. Indemnification.
In consideration of the Buyer’s execution and delivery of this Agreement and acquiring the Securities hereunder, and in addition
to all of the Company’s other obligations under this Agreement or the Note, the Company shall defend, protect, indemnify and hold
harmless the Buyer and its 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 (a) any misrepresentation or breach of any representation or warranty made by the Company in this Agreement, the Note or any other
agreement, certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation
of the Company contained in this Agreement, the Note or any other agreement, certificate, instrument or document contemplated hereby or
thereby or (c) any cause of action, suit 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) and arising out of or resulting from (i) the execution, delivery, performance or
enforcement of this Agreement, the Note or any other agreement, certificate, instrument or document contemplated hereby or thereby, (ii)
any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities,
or (iii) the status of the Buyer or holder of the Securities as an investor in the Company pursuant to the transactions contemplated by
this Agreement. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make
the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law.


 






    18


     


    

 


n. Remedies.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Buyer by vitiating the intent
and purpose of the transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of
its obligations under this Agreement, the Note, the Warrants, or any other agreement, certificate, instrument or document contemplated
hereby or thereby will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this
Agreement, the Note, the Warrants, or any other agreement, certificate, instrument or document contemplated hereby or thereby, that the
Buyer shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable
herein, to an injunction or injunctions restraining, preventing or curing any breach of this Agreement, the Note, the Warrants, or any
other agreement, certificate, instrument or document contemplated hereby or thereby, and to enforce specifically the terms and provisions
hereof and thereof, without the necessity of showing economic loss and without any bond or other security being required.


 


o. Payment
Set Aside. To the extent that the (i) Company makes a payment or payments to the Buyer hereunder, pursuant to the Note, pursuant to
the Warrants, or pursuant to any other agreement, certificate, instrument or document contemplated hereby or thereby, or (ii) the
Buyer enforces or exercises its rights hereunder, pursuant to the Note, pursuant to the Warrants, or pursuant to any other agreement,
certificate, instrument or document contemplated hereby or thereby, and such payment or payments or the proceeds of such enforcement or
exercise or any part thereof (including but not limited to the sale of the Securities) are for any reason (i) subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, or disgorged by the Buyer, or (ii) are required to be refunded,
repaid or otherwise restored to the Company, a trustee, receiver or any other person or entity under any law (including, without limitation,
any bankruptcy law, foreign, state or federal law, common law or equitable cause of action), then (i) 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 and (ii) the Company shall immediately pay to the Buyer a dollar
amount equal to the amount that was for any reason (i) subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, or disgorged by the Buyer, or (ii) required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver
or any other person or entity under any law (including, without limitation, any bankruptcy law, foreign, state or federal law, common
law or equitable cause of action).


 


p. Failure
or Indulgence Not Waiver. No failure or delay on the part of the Buyer in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privileges. All rights and remedies of the Buyer existing hereunder are cumulative to,
and not exclusive of, any rights or remedies otherwise available.





 


[Signature Page Follows]


 




    19


     


    


 


IN WITNESS WHEREOF, the undersigned
Buyer and the Company have caused this Agreement to be duly executed as of the date first above written.


 





	NIGHTFOOD
    HOLDINGS, INC.	 
	 	 	 
	By:	/s/ Sean Folkson	 
	Name:  	SEAN FOLKSON	 
	Title: 	CHIEF EXECUTIVE OFFICER	 
	 	 	 
	MAST HILL
    FUND, L.P.	 
	 	 	 
	By:	/s/ Patrick Hassani	 
	Name: 	PATRICK HASSANI	 
	Title: 	CHIEF INVESTMENT OFFICER	 



 


SUBSCRIPTION AMOUNT:


 


Principal Amount of Note: $700,000.00


Actual Amount of Purchase Price of Note: $644,000.00


 




    20


     


    


 


EXHIBIT A


 


FORM OF NOTE


 


[attached hereto]


 


 


 


 


 


 




    21


     


    


 


EXHIBIT B


 


PIGGY-BACK REGISTRATION RIGHTS


 


All of the Conversion Shares
and Exercise Shares shall be deemed “Registrable Securities” subject to the provisions of this Exhibit B. All capitalized
terms used but not defined in this Exhibit B shall have the meanings ascribed to such terms in the Securities Purchase Agreement to which
this Exhibit is attached.


 


1. Piggy-Back
Registration.


 


1.1. Piggy-Back
Rights. If at any time on or after the date of the Closing the Company proposes to file any Registration Statement under the 1933
Act (a “Registration Statement”) with respect to any offering of equity securities, or securities or other obligations exercisable
or exchangeable for, or convertible into, equity securities, by the Company for its own account or for shareholders of the Company for
their account (or by the Company and by shareholders of the Company), other than a Registration Statement (i) filed in connection with
any employee stock option or other benefit plan on Form S-8, (ii) for a dividend reinvestment plan or (iii) in connection with a merger
or acquisition, then the Company shall (x) give written notice of such proposed filing to the holders of Registrable Securities appearing
on the books and records of the Company as such a holder as soon as practicable but in no event less than ten (10) days before the anticipated
filing date of the Registration Statement, which notice shall describe the amount and type of securities to be included in such Registration
Statement, the intended method(s) of distribution, and the name of the proposed managing underwriter or underwriters, if any, of the offering,
and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the sale of such number of Registrable
Securities as such holders may request in writing within three (3) days following receipt of such notice (a “Piggy-Back Registration”).
The Company shall cause such Registrable Securities to be included in such registration and shall cause the managing underwriter or underwriters
of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration on the
same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities
in accordance with the intended method(s) of distribution thereof (with the understanding that the Company shall file the initial prospectus
covering the Buyer’s sale of the Registrable Securities at prevailing market prices on the same date that the Registration Statement
is declared effective by the SEC).


 


1.2. Withdrawal.
Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities in any
Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness of the Registration
Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making a demand pursuant to written
contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness of such Registration Statement.
Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders of Registrable Securities in connection
with such Piggy-Back Registration as provided in Section 1.5 below.


 


1.3. The
Company shall notify the holders of Registrable Securities at any time when a prospectus relating to such holder’s Registrable Securities
is required to be delivered under the 1933 Act, upon discovery that, or upon the happening of any event as a result of which, the prospectus
included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.
At the request of such holder, the Company shall also prepare, file and furnish to such holder a reasonable number of copies of a supplement
to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the circumstances then existing. The holders of Registrable Securities
shall not to offer or sell any Registrable Securities covered by the Registration Statement after receipt of such notification until the
receipt of such supplement or amendment.


 






    22


     


    

 


1.4. The
Company may request a holder of Registrable Securities to furnish the Company such information with respect to such holder and such holder’s
proposed distribution of the Registrable Securities pursuant to the Registration Statement as the Company may from time to time reasonably
request in writing or as shall be required by law or by the SEC in connection therewith, and such holders shall furnish the Company with
such information.


 


1.5. All
fees and expenses incident to the performance of or compliance with this Exhibit B by the Company shall be borne by the Company whether
or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence
shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses of the Company’s
counsel and independent registered public accountants) (A) with respect to filings made with the SEC, (B) with respect to filings required
to be made with any trading market on which the Common Stock is then listed for trading, (C) in compliance with applicable state securities
or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation, fees and disbursements of counsel for
the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities) and (D) with respect to any filing
that may be required to be made by any broker through which a holder of Registrable Securities intends to make sales of Registrable Securities
with the FINRA, (ii) printing expenses, (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company, (v) 1933 Act liability insurance, if the Company so desires such insurance, (vi) fees and expenses of all other persons or entities
retained by the Company in connection with the consummation of the transactions contemplated by this Exhibit B and (vii) reasonable fees
and disbursements of a single special counsel for the holders of Registrable Securities (selected by holders of the majority of the Registrable
Securities requesting such registration) which shall in no event exceed $2,500 in fees. In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including,
without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any
annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange
as required hereunder. In no event shall the Company be responsible for any broker or similar commissions of any holder of Registrable
Securities.


 


1.6. The
Company and its successors and assigns shall indemnify and hold harmless the Buyer, each holder of Registrable Securities, the officers,
directors, members, partners, agents and employees (and any other individuals or entities with a functionally equivalent role of a person
holding such titles, notwithstanding a lack of such title or any other title) of each of them, each individual or entity who controls
the Buyer or any such holder of Registrable Securities (within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act)
and the officers, directors, members, stockholders, partners, agents and employees (and any other individuals or entities with a functionally
equivalent role of a person holding such titles, notwithstanding a lack of such title or any other title) of each such controlling individual
or entity (each, an “Indemnified Party”), to the fullest extent permitted by applicable law, from and against any and all
losses, claims, damages, liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively,
“Losses”), as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained
in a Registration Statement, any related prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any such prospectus or supplement thereto, in light of the circumstances under which they
were made) not misleading or (2) any violation or alleged violation by the Company of the 1933 Act, the 1934 Act or any state securities
law, or any rule or regulation thereunder, in connection with the performance of its obligations under this Exhibit B, except to the extent,
but only to the extent, that (i) such untrue statements or omissions are based upon information regarding the Buyer or such holder of
Registrable Securities furnished to the Company by such party for use therein. The Company shall notify the Buyer and each holder of Registrable
Securities promptly of the institution, threat or assertion of any proceeding arising from or in connection with the transactions contemplated
by this Exhibit B of which the Company is aware.


 





1.7. If
the indemnification under Section 1.6 is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for
any Losses, then the Company shall contribute to the amount paid or payable by such Indemnified Party, in such proportion as is appropriate
to reflect the relative fault of the Company and Indemnified Party in connection with the actions, statements or omissions that resulted
in such Losses as well as any other relevant equitable considerations. The relative fault of the Company and Indemnified Party shall be
determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, the
Company or the Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct
or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include
any reasonable attorneys’ or other fees or expenses incurred by such party in connection with any proceeding to the extent such
party would have been indemnified for such fees or expenses if the indemnification provided for in Section 1.6 was available to such party
in accordance with its terms. It is agreed that it would not be just and equitable if contribution pursuant to this Section 1.7 were determined
by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in
the immediately preceding sentence. Notwithstanding the provisions of this Section 1.7, neither the Buyer nor any holder of Registrable
Securities shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received
by such party from the sale of all of their Registrable Securities pursuant to such Registration Statement or related prospectus exceeds
the amount of any damages that such party has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.


 


[End of Exhibit B]


 


 


23