Exhibit 10.1


 


EXECUTION
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SECURITIES PURCHASE AGREEMENT


 


This SECURITIES PURCHASE
AGREEMENT (this “Agreement”), dated as of June 7, 2022 (the “Execution Date”), between
Mullen Automotive Inc., a Delaware corporation (the “Company”), and the Buyers listed on the signatures pages hereto
(collectively, the “Buyers” and each, a “Buyer”).


 


RECITALS


 


A.            The
parties desire that, upon the terms and subject to the conditions contained herein and solely upon the request of the Company, the Buyers
shall purchase up to an aggregate of Two Hundred Seventy Five Million Dollars ($275,000,000) (the "Commitment Amount")
on the ninetieth (90) day following the Resale Effective Date (the “Purchase Date”) to purchase shares of the Company’s
Series D Preferred Stock, par value $0.001 per share (the “Preferred Stock”), and (ii) warrants, in the form
attached hereto as Exhibit A, (the “Warrants”), to acquire up to the aggregate number of shares
of Common Stock set forth on the Purchase Notice. “Purchase Shares” means all or a portion of the total number of shares
of Preferred Stock to be sold and purchased hereunder. “Securities” means the Purchase Shares together with the Warrants.
 “Conversion Shares” means all or a portion of the total number of shares of Common Stock issuable upon full conversion
of the Purchase Shares. “Warrant Shares” means all or a portion of the total number of shares of Common Stock issuable
upon full exercise of the Warrants.


 


AGREEMENT


 


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


 


	1.	PURCHASE AND SALE OF PREFERRED STOCK AND WARRANTS.


 


(a)            Delivery
of Purchase Notice; Purchase of Securities. Subject to the satisfaction (or waiver) of the terms and conditions set forth herein,
on the Purchase Date (provided that if the Purchase Date is not a Trading Day, then the immediately following Trading Day
shall be the Purchase Date) the Company may, in its sole discretion, deliver a Purchase Notice to the Buyers pursuant to which the Company
shall issue and sell to the Buyers, and Buyers shall purchase from the Company, that number of Securities with an aggregate Purchase Price
equal to the Commitment Amount, and in the amounts for each Buyer as set forth on the Purchase Notice (the “Purchase”).
The Purchase Notice shall be in the form attached hereto as Exhibit B and incorporated herein by reference (the “Purchase
Notice”). The Purchase Price set forth in the Purchase Notice shall be the Market Price, subject to a floor price of $0.10 per
share.


 


(b)           Closing;
Delivery of Securities. The closing of the Purchase shall occur upon the first Trading Day following the confirmation of receipt and
approval for trading by Buyer of the Securities (the “Closing”). The date on which the Closing actually occurs is referred
to herein as the “Closing Date.” On the Closing Date, (i) Buyer shall pay the Purchase Amount to the Company for
the respective Securities to be issued and sold to Buyer at the Closing, by wire transfer of immediately available funds in accordance
with the Company’s written wire instructions and (ii) the Company shall issue to Buyer the Purchase Shares (pursuant to which
Buyer initially shall have the right to acquire up to the aggregate number of Conversion Shares as is set forth on the Purchase Notice
in respect of such Purchase Shares) and the Warrants (pursuant to which Buyer initially shall have the right to acquire up to the aggregate
number of Warrant Shares as is set forth on the Purchase Notice in respect of such Warrants) as set forth in the Purchase Notice, in all
cases, duly executed on behalf of the Company and registered in the name of Buyer or its designee, all as set forth on the Purchase Notice.


 






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(e)           Beneficial Ownership
Limitation. The Company shall not issue and Buyer shall not accept any Common Stock under the Transaction Documents, and Buyer shall
not otherwise purchase Common Stock or securities exercisable or exchangeable for or convertible into Common Stock from any party, in
the public market or otherwise, if such shares proposed to be sold or otherwise issued, or the Common Stock proposed to be purchased or
issuable upon exercise, exchange or conversion of the securities proposed to be purchased (after giving effect to any limitation on exercise,
exchange or conversion therein), when aggregated with all other shares of Common Stock then owned beneficially (as calculated pursuant
to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) by Buyer and its affiliates, constitute more
than the Maximum Percentage of the then issued and outstanding shares of Common Stock. The number of shares of Common Stock constituting
the Maximum Percentage determination shall be appropriately adjusted for any stock dividend, stock split, reverse stock split or similar
transaction. For the avoidance of doubt, any such shares of Common Stock that are determined at any time to cause Buyer’s beneficial
ownership of Common Stock to exceed the Maximum Percentage upon issuance shall be issued to Buyer at such later time to the extent such
issuance would not cause Buyer’s beneficial ownership of Common Stock to exceed the Maximum Percentage.


 


(f)           Taxes. The
Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery of any Securities
to the Buyer made under this Agreement or the other Transaction Documents (as defined below).


 


	2.	BUYER’S REPRESENTATIONS AND WARRANTIES.


 


Buyer represents and warrants
to the Company, on behalf of itself, that:


 


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


 


(b)            No
Public Sale or Distribution. Buyer (i) is acquiring, or will acquire, the Purchase Shares and Warrants, (ii) upon conversion
of its Purchase Shares, will acquire the Conversion Shares issuable upon conversion thereof, and (iii) upon exercise of its Warrants,
will acquire the Warrant Shares issuable upon exercise thereof, in each case, for its own account and not with a view towards, or for
resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales
registered or exempted under the Securities Act of 1933, as amended (the “Securities Act”); provided,
however, by making the representations herein, Buyer does not agree, or make any representation or warranty, to hold any
of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance
with or pursuant to a registration statement or an exemption under the Securities Act. Buyer does not presently have any agreement or
understanding, directly or indirectly, with any Person (as defined below) to distribute any of the Securities in violation of applicable
securities laws.


 


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


 


(d)            Validity;
Enforcement. The execution and delivery of the Transaction Documents and the consummation by Buyer of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary action on the part of Buyer and no further consent or authorization
of Buyer or its members is required. Each Transaction Document has been duly executed by Buyer and when delivered in accordance with terms
hereof and thereof, constitutes the legal, valid and binding obligations of Buyer enforceable against Buyer in accordance with its terms,
except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.


 






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


 


(f)            Experience
of Buyer. Buyer has such knowledge, sophistication and experience in business and financial matter so as to be capable of evaluating
the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Buyer
is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such
investment.


 


(g)            Foreign
Corrupt Practices. Neither Buyer, nor any of its subsidiaries or affiliates, nor to the knowledge of Buyer, any of its directors,
officers, agents, employees, members or other Persons acting on behalf of Buyer or any its subsidiaries or affiliates has, in the course
of its actions for, or on behalf of, Buyer or any of its subsidiaries or affiliates (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence
payment, kickback or other unlawful payment of any foreign or domestic government official or employee.


 


(h)            Patriot
Act Representations.


 


(i) Buyer represents
that all evidence of identity provided is genuine and all related information furnished is accurate.


 


(ii) Buyer
hereby acknowledges that the Company seeks to comply with all applicable anti-money laundering laws and regulations. In furtherance of
such efforts, Buyer hereby represents and agrees that: (1) no part of the funds used by Buyer to acquire the Securities have been,
or shall be, directly or indirectly derived from, or related to, any activity that may contravene federal, state, or international laws
and regulations, including anti-money laundering laws and regulations; and (ii) no payment to the Company by Buyer shall cause the
Company to be in violation of any applicable anti-money laundering laws and regulations including without limitation, the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Executive
Order 13224 (2001) (the “Patriot Act”) issued by the President of the United States and the U.S. Department of the Treasury
Office of Foreign Assets Control (“OFAC”) regulations.


 






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(iii) Buyer
represents and warrants that the amounts to be paid by Buyer to the Company will not be directly or indirectly derived from activities
that may contravene federal, state or international laws and regulations, including anti-money laundering laws and regulations. Buyer
represents and warrants that, to the best of its knowledge, none of: (a) Buyer; (b) any person controlling or controlled by
Buyer; or (c) any person having a beneficial interest in Buyer is (i) a country, territory, individual or entity named on a
list maintained by OFAC, (ii) a person prohibited under the OFAC Programs, (iii) a senior foreign political figure1,
or any immediate family2 member or close associate3 of a senior foreign political figure as such terms are defined
in the footnotes below or (iv) a “foreign shell bank” within the meaning of the U.S. Bank Secrecy Act (31 U.S.C. §5311
et seq.), as amended (the “Bank Secrecy Act”) and the regulations promulgated thereunder by the U.S. Department of the Treasury.


 


(iv) Buyer
further represents and warrants that Buyer: (i) has conducted thorough due diligence with respect to all of its beneficial owners,
(ii) has established the identities of all beneficial owners and the source of each of the beneficial owner’s funds and (iii) will
retain evidence of any such identities, any such source of funds and any such due diligence.


 


(v) Neither
Buyer nor any person directly or indirectly controlling, controlled by or under common control with Buyer is a person identified as a
terrorist organization on any relevant lists maintained by governmental authorities.


 


(vi) Buyer
agrees to provide the Company all information that may be reasonably requested to comply with applicable laws and regulations of any applicable
jurisdiction, or to respond to requests for information concerning the identity of Buyer from any governmental authority, self-regulatory
organization or financial institution in connection with its anti-money laundering compliance procedures, or to update such information.
Buyer agrees to notify the Company promptly if there is any change with respect to the representations and warranties provided herein.
Buyer consents to the disclosure to regulators and law enforcement authorities by the Company and its affiliates and agents of any information
about Buyer or its constituents as the Company reasonably deems necessary or appropriate to comply with applicable anti-money laundering,
anti-terrorist and asset control laws, regulations, rules and orders.


 


	3.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY.


 


The Company represents and
warrants to the Buyer the matters set forth in this Section 3, as may be qualified by the corresponding section of the Company Disclosure
Schedule. These representations and warranties, and the information set forth in the Company Disclosure Schedule, are current as of the
date of this Agreement, except to the extent that a representation, warranty or section of the Company Disclosure Schedule expressly states
that such representation or warranty, or information in such section of the Company Disclosure Schedule, is current only as of an earlier
date. If any information is so reflected as of an earlier date, there have been no material changes since such date to the date hereof.


 


(a)            Organization
and Qualification. Each of the Company and each of its subsidiaries are entities duly organized and validly existing and, except as
provided on Section 3(a) of the Disclosure Schedule, in good standing under the laws of the jurisdiction in which they
are formed, and have the requisite power and authorization to own their properties and to carry on their business as now being conducted
and as presently proposed to be conducted. Each of the Company and each of its subsidiaries is duly qualified as a foreign entity to do
business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it
makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not have a Material
Adverse Effect. Except as provided on in the SEC Reports (as defined below), the Company has no material subsidiaries.


 







 



1
A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military
or judicial branches of a foreign government (whether elected or not), a senior official of a major foreign political party, or a senior
executive of a foreign government-owned corporation. In addition, a “senior foreign political figure” includes any corporation,
business or other entity that has been formed by, or for the benefit of, a senior foreign political figure.


2
 “Immediate family” of a senior foreign political figure typically includes the figure’s parents, siblings, spouse, children
and in-laws.




3
A “close associate” of a senior foreign political figure is a person who is widely and publicly known to maintain an unusually
close relationship with the senior foreign political figure, and includes a person who is in a position to conduct substantial domestic
and international financial transactions on behalf of the senior foreign political figure.


 






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(b)           Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement
and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery
of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the issuance of the Purchase Shares and the issuance of the Warrants, subject to the
Stockholder Approval, and the reservation for issuance and issuance of the Conversion Shares upon conversion of the Purchase Shares, and
issuance of the Warrant Shares issuable upon exercise of the Warrants) have been (i) duly authorized by the Company’s board
of directors and (ii) no further filing, consent or authorization is required by the Company, its board of directors or its stockholders
or other governing body of the Company (other than receipt of the Stockholder Approval, the filing of the Certificate of Designation,
and the filing of one or more Registration Statements and any other filings as may be required by any state or other securities agencies).
This Agreement has been, and the other Transaction Documents will be prior to the Closing, duly executed and delivered by the Company,
and each constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective
terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and
remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law.


 


(c)            Issuance
of Securities. The issuance of the Purchase Shares is duly authorized, and upon issuance in accordance with the terms of this Agreement,
the Purchase Shares will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, taxes, Liens,
charges and other encumbrances with respect to the issue thereof (other than pursuant to the securities laws), with the holders being
entitled to all rights accorded to a holder of shares of Preferred Stock. The issuance of the Warrants pursuant to the Transaction Documents
is duly authorized, and upon the due execution, issuance and delivery thereof against payment in full therefor in accordance with the
terms of this Agreement, the Warrants will be valid and binding obligations of the Company enforceable against the Company in accordance
with their terms. Subject to the Stockholder Approval and filing of the Certificate of Designation, the issuance of the Conversion Shares
is duly authorized, and upon issuance in accordance with the Purchase Shares, the Conversion Shares will be validly issued, fully paid
and non-assessable and free from all preemptive or similar rights, taxes, Liens, charges and other encumbrances with respect to the issue
thereof (other than pursuant to the securities laws), with the holders being entitled to all rights accorded to a holder of shares of
Common Stock. The issuance of the Warrant Shares is duly authorized, and upon issuance in accordance with the Warrants, the Warrant Shares
will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, taxes, Liens, charges and other
encumbrances with respect to the issue thereof (other than pursuant to the securities laws), with the holders being entitled to all rights
accorded to a holder of shares of Common Stock. As of the Closing, the Company shall have reserved from its duly authorized capital stock
not less than the sum of (i) 250% of the maximum number of Conversion Shares issuable upon conversion of the Purchase Shares (without
taking into account any limitations on the conversion of the Purchase Shares set forth in the Amended and Restated Articles of Incorporation)
and (ii) 250% of the maximum number of Warrant Shares issuable upon exercise of the Warrants (without taking into account any limitations
on the exercise of the Warrants set forth therein).


 


(d)           Subject
to the accuracy of the representations and warranties of the Buyer in this Agreement, the offer and issuance by the Company of the Securities
is exempt from registration under the Securities Act. Upon issuance in accordance with the terms of this Agreement, Buyer will have good
and marketable title to the Securities.


 






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(e)            No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Purchase Shares, the Conversion
Shares, the Warrants and the Warrant Shares and the reservation for issuance of the Conversion Shares and the Warrant Shares) will not
(i) result in a violation of the articles of incorporation of the Company (including, without limitation, any certificate of designation
contained therein) or other organizational documents of the Company or any of its subsidiaries, any capital stock of the Company or any
of its subsidiaries or bylaws or operating agreements of the Company or any of its subsidiaries, (ii) conflict with, or constitute
a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its subsidiaries is
a party or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including, without limitation, foreign,
federal and state securities laws and regulations and the rules and regulations by which the Common Stock or any property or asset
of the Company is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations that could
not reasonably be expected to have a Material Adverse Effect.


 


(f)            Consents.
Neither the Company nor any subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration
with any court, governmental agency or any regulatory or self-regulatory agency or any other Person (other than filing the Certificate
of Designation, the receipt of the Stockholder Approval and the filing of one or more Registration Statements any other filings as may
be required by any state securities agencies), in order for it to execute, deliver or perform any of its respective obligations under,
or contemplated by, the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations,
orders, filings and registrations which the Company is required to obtain at or prior to the Closing have been obtained or effected on
or prior to the Closing Date, and the Company is not aware of any facts or circumstances which might prevent the Company from obtaining
or effecting any of the registration, application or filings contemplated by the Transaction Documents, other than filing the Certificate
of Designation and the Stockholder Approval.


 


(g)           Acknowledgment
Regarding Buyer’s Purchase of Securities. Buyer is not (i) an officer or director of the Company, (ii) an affiliate
(as defined in Rule 405 of the Securities Act) of the Company (an “Affiliate”) or (iii) to the Company’s
knowledge, a “beneficial owner” (as defined for purposes of Rule 13d-3 of the Exchange Act) of more than 10% of the shares
of Common Stock. The Company’s decision to enter into the Transaction Documents has been based on its and its representative’s
independent evaluation of the transactions contemplated hereby and the Company has neither been induced by, nor has it relied upon, any
representation, warranty, covenant or statement (written or oral), whether express or implied, made by Buyer except those that are expressly
set forth in this Agreement.


 


(h)           Placement
Agent’s Fees. The Company shall be responsible for the payment of any of its placement agent’s fees, financial
advisory fees, or brokers’ commissions, relating to or arising out of the transactions contemplated hereby.


 


(i)            SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under
the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding
the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of
such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none
of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The Company has never been an issuer subject to Rule 144(i) under the Securities Act.


 






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(j)            Dilutive
Effect. The Company understands and acknowledges that the number of Conversion Shares and Warrant Shares may increase in certain circumstances.
The Company further acknowledges that, except to the extent an issuance would exceed the beneficial ownership limitation in Section 1(e) of
this Agreement, its obligation to issue the Conversion Shares upon conversion of the Purchase Shares and the Warrant Shares upon exercise
of the Warrants in accordance therewith and with this Agreement is absolute and unconditional, regardless of the dilutive effect that
such issuance may have on the ownership interests of other stockholders of the Company.


 


(k)           Absence
of Certain Changes. Except as provided on Section 3(k) of the Disclosure Schedule, since March 31, 2022, there
has been no material adverse change and no material adverse development in the business, assets, liabilities, properties, operations (including
results thereof), or condition (financial or otherwise) of the Company and its subsidiaries. Except as provided on Section 3(k) of
the Disclosure Schedule, since March 31, 2022, neither the Company nor any of its subsidiaries has (i) declared or paid
any dividends, (ii) sold any material assets outside of the ordinary course of business or (iii) made any material capital expenditures,
individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its subsidiaries has taken
any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation
or winding up. Neither the Company nor any of its subsidiaries has any knowledge or reason to believe that any of their respective creditors
intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do
so. The Company is not, and after giving effect to the transactions contemplated hereby to occur at the Closing will not be, Insolvent
(as defined below). The Company has not engaged in any business or in any transaction, and is not about to engage in any business or in
any transaction, for which the Company’s remaining assets constitute unreasonably small capital.


 


(l)            No
Undisclosed Events, Liabilities, Developments or Circumstances. Except as provided on Section 3(l) of the Disclosure
Schedule, since March 31, 2022, no event, liability, development or circumstance has occurred or exists, or is reasonably expected
to occur or exist with respect to the Company or any of its subsidiaries or any of their respective businesses, properties, liabilities,
prospects, operations (including results thereof) or condition (financial or otherwise) that would have a Material Adverse Effect on the
Company.


 


(m)          Conduct
of Business; Regulatory Permits. Neither the Company nor any of its subsidiaries is in violation of any term of or in default under
its organizational documents including its certificate of incorporation, bylaws, certificate of formation, any other organizational charter,
any certificate of designation, preferences or rights of any outstanding series of preferred stock of the Company or any of its subsidiaries,
respectively. Neither the Company nor any of its subsidiaries is in violation of any judgment, decree or order or any statute, ordinance,
rule or regulation applicable to the Company or any of its subsidiaries, and the Company will not conduct its business in violation
of any of the foregoing, except in all cases for possible violations which could not, individually or in the aggregate, have a Material
Adverse Effect. The Company and each of its subsidiaries possess all certificates, authorizations and permits issued by the appropriate
regulatory authorities necessary to conduct their businesses, except where the failure to possess such certificates, authorizations or
permits would not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit.


 


(n)           Foreign
Corrupt Practices. Neither the Company nor any of its subsidiaries nor to the knowledge of the Company, any director, officer, agent,
employee or other Person acting on behalf of the Company or any of its subsidiaries (as applicable) has, in the course of its actions
for, or on behalf of, the Company or any of its subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate, payoff, influence payment, kickback or other unlawful
payment to any foreign or domestic government official or employee.


 






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(o)           Transactions
With Affiliates. Except as provided in the SEC Reports, none of the officers, directors, employees or Affiliates of the Company is
presently a party to any transaction with the Company (other than for ordinary course services as employees, officers or directors and
immaterial transactions), 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 such officer, director, employee or
Affiliate or, to the knowledge of the Company, any corporation, partnership, trust or other Person in which any such officer, director,
employee or Affiliate has a substantial interest or is an employee, officer, director, trustee or partner.


 


(p)            Equity
Capitalization. As of the date hereof, the authorized and issued capital stock of the Company is as set forth in the SEC Reports and
Section 3.1(q) of the Disclosure Schedule. No shares of Common Stock are held in treasury. All of such outstanding shares
are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as provided
in the SEC Reports and on Section 3(q) of the Disclosure Schedule, (i) to the Company’s knowledge, no Person
owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible
Securities, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account
of any limitations on exercise or conversion (including “blockers”) contained therein or in the Amended and Restated Articles
of Incorporation without conceding that such identified Person is a 10% stockholder for purposes of federal securities laws); (ii) the
Company’s capital stock and the capital stock of its subsidiaries are not subject to preemptive rights or any other similar rights
or any Liens; (iii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock of the Company
or any of its subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries
is or may become bound to issue additional capital stock or options, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock
of the Company or any of its subsidiaries, respectively (other than as may be issued from time to time under any equity incentive plan
maintained); (iv) there are no outstanding debt securities, convertible notes, credit agreements, credit facilities or other agreements,
documents or instruments evidencing Indebtedness of the Company or any of its subsidiaries or by which the Company or any of its subsidiaries
is or may become bound; (v) there are no financing statements securing obligations in any amounts filed in connection with the Company
or any of its subsidiaries; (vi) there are no agreements or arrangements under which the Company or any of its subsidiaries is obligated
to register the sale of any of their securities under the Securities Act (except as provided in Section 5(h) hereof); (vii) there
are no outstanding securities or instruments of the Company or any of its subsidiaries which contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become
bound to redeem a security of the Company or any of its subsidiaries; (viii) there are no securities or instruments containing anti-dilution
or similar provisions that will be triggered by the issuance of the Securities; and (ix) neither the Company nor any of its subsidiaries
has stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. The Company has provided
to Buyer a true, correct and complete copy of the Company’s charter as in effect on the date hereof, and the terms of all securities
convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof.


 


(q)            Indebtedness
and Other Contracts. Except as provided in the SEC Reports, each of the Company and its subsidiaries (i) does not have any material
outstanding Indebtedness, Indebtedness secured by any Lien on any assets of the Company or any of its Subsidiaries or other material
debt obligations, (ii) is not a party to any contract, agreement or instrument, the violation of which, or default under which, by
the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) is
not in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where
such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, and (iv) is not a
party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s
officers, has or is expected to have a Material Adverse Effect. The Company has no current intention or expectation to file for reorganization
or liquidation under the bankruptcy or reorganization laws of any jurisdiction


 






    	 	8	 



     


    

 


EXECUTION
VERSION


 


(r)            Absence
of Litigation. Except as set forth in the SEC Reports, there is no action, suit, 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, threatened
against or affecting the Company or any of its subsidiaries, the shares of Common Stock or any of the Company’s or its subsidiaries’
executive officers or directors which would be reasonably likely to adversely affect the transactions contemplated by this Agreement.
There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving
the Company, any of its subsidiaries or any current or former director or officer of the Company or any of its subsidiaries.


 


(s)            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. The Company has no reason to believe that it will be unable to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have
a Material Adverse Effect.


 


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


 


(u)           Title.
The Company and its subsidiaries have good and marketable title to (i) all real property owned by it and (ii) 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 do not materially affect the value of such property and do not interfere with the use made and proposed to
be made of such property by the Company and any of its subsidiaries. Any real property and facilities held under lease by the Company
and any of its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and buildings by the Company or any of its subsidiaries.


 


(v)            Intellectual
Property Rights. The Company and its subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights, copyrights, original works, inventions, licenses,
approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and registrations therefor
(“Intellectual Property Rights”) necessary to conduct their respective businesses as now conducted and as presently
proposed to be conducted. None of the Company’s or its subsidiaries’ Intellectual Property Rights have expired, terminated
or been abandoned, or are expected to expire, terminate or be abandoned, within three years from the date of this Agreement, which could
reasonably be expected to result in a Material Adverse Effect. The Company has no knowledge of any material infringement by the Company
or any of its subsidiaries of Intellectual Property Rights of others. There is no claim, action or proceeding being made or brought, or
to the knowledge of the Company or any of its subsidiaries, being threatened, against the Company or any of its subsidiaries regarding
their Intellectual Property Rights and which would reasonably be expected to have a Material Adverse Effect. The Company is not aware
of any facts or circumstances which might give rise to any of the foregoing infringements or claims, actions or proceedings. The Company
and each of its subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their
Intellectual Property Rights, except where failure to take such measures would not, either individually or in the aggregate, reasonably
be expected to materially affect the value of their respective Intellectual Property Rights.


 






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EXECUTION
VERSION


 


(w)           Environmental
Laws. The Company and its subsidiaries (i) are in compliance with all Environmental Laws (as defined below), (ii) have received
all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and
(iii) are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses
(i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


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


 


(y)           Tax
Status. Except as set forth on Section 3(z) of the Disclosure Schedule, each of the Company and its subsidiaries
(i) has timely made or filed all foreign, federal and state income and all other tax returns, reports and declarations required by
any jurisdiction to which it is subject, (ii) has timely paid all taxes and other governmental assessments and charges that are material
in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii) has
set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such
returns, reports or declarations apply, except in each case where the failure to file, pay or set aside could not be reasonably expected
to have a Material Adverse Effect. Except as set forth on Section 3(z) of the Disclosure Schedule, there are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and its subsidiaries
know of no basis for any such claim. The Company is not operated in such a manner as to qualify as a passive foreign investment company,
as defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended.


 


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


 


(aa)         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 contemplated hereby, any beneficial owner of 20% or more of the Company’s outstanding
voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the
Securities 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 Securities
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.


 






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EXECUTION
VERSION


 


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


 


(cc)         Reserved.


 


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


 


(ee)         Illegal
or Unauthorized Payments; Political Contributions. Neither the Company nor any of its subsidiaries nor, to the best of the Company’s
knowledge (after reasonable inquiry of its executive officers and directors), any of the officers, directors, employees, agents or other
representatives of the Company or any of its subsidiaries or any other business entity or enterprise with which the Company or any of
its subsidiaries 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, (a) as a kickback or bribe to any Person
or (b) 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)          Money
Laundering. The Company and its subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001
and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws, regulations
and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, without limitation,
(i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons
Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31
CFR, Subtitle B, Chapter V.


 


(gg)         Registration
Rights. Except as provided in the SEC Reports and this Agreement, no holder of securities of the Company has rights to the registration
of any securities of the Company because of the issuance of the Securities hereunder that could expose the Company to material liability
or Buyer to any liability or that could impair the Company’s ability to consummate the issuance and sale of the Securities in the
manner, and at the times, contemplated hereby, which rights have not been waived by the holder thereof as of the date hereof.


 


(hh)         Disclosure.
Each representation and warranty of the Company made herein is true and correct in all material respects and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading. The Company confirms that neither it nor any other Person acting on its
behalf has provided Buyer or their agents or counsel with any information that constitutes or could reasonably be expected to constitute
material, non-public information concerning the Company or any of its subsidiaries, other than the existence of the transactions contemplated
by this Agreement and the other Transaction Documents


 






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EXECUTION
VERSION


 


	4.	COVENANTS.


 


(a)           Certain
Transactions. Each Buyer covenants that neither it, nor any affiliate acting on its behalf or pursuant to any understanding with it,
will (i) execute any Short Sales, of any of the Company’s securities during the period commencing with the execution of this
Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced nor (ii) from
the date hereof until the Purchase Date, execute any Short Sales of the Common Stock (provided that this provision shall
not prohibit any sales made where a corresponding notice of conversion for the Purchased Shares is tendered to the Company and the shares
received upon such conversion or exercise are used to close out such sale). Buyer covenants that all transactions it conducts in the Common
Stock of the Company shall be in compliance with applicable rules and regulation of the Commission. Buyer will comply with Regulation
M under the Exchange Act, if applicable.


 


(b)           Fees.
The Company shall be responsible for the payment of any transfer agent fees, DTC fees or broker’s commissions, relating to or arising
out of the issuance and sale of the Securities by the Company as contemplated hereby. The Company shall pay, and hold Buyer harmless against,
any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in
connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this
Agreement shall bear its own expenses in connection with the sale of the Securities to Buyer.


 


(c)           Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that the
Securities may be pledged by Buyer in connection with a bona fide margin agreement or other loan or financing arrangement that is secured
by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and
Buyer effecting a pledge of Securities shall not be required to provide the Company with any notice thereof or otherwise make any delivery
to the Company pursuant to this Agreement or any other Transaction Document. At Buyer’s expense, the Company hereby agrees to execute
and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to
such pledgee by Buyer provided that the Company shall be under no obligation to deliver any legal opinion required in connection
therewith unless required by the Company’s transfer agent to be issued by the Company’s legal counsel.


 


(d)           Disclosure
of Transactions and Other Material Information. The Company shall not, and the Company shall cause each of its officers, directors,
employees and agents not to, provide Buyer with any material, non-public information regarding the Company from and after the Execution
Date without the express prior written consent of Buyer. Subject to the foregoing, neither the Company nor Buyer shall issue any press
releases or any other public statements with respect to the transactions contemplated hereby; provided, however,
the Company shall be entitled, without the prior approval of Buyer, to make any press release or other public disclosure with respect
to such transactions as is required by applicable law and regulations (provided that Buyer shall be consulted by the Company
in connection with any such press release or other public disclosure prior to its release). Without the prior written consent of Buyer,
the Company shall not (and shall cause each of its affiliates to not) disclose the name of Buyer in any filing (other than as required
by applicable law or rules and regulations), announcement, release or otherwise. Notwithstanding anything contained in this Agreement
to the contrary and without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that,
from and after the Execution Date, and except as set forth in Section 4(l), Buyer shall not have (unless expressly agreed to by Buyer
after the date hereof in a written definitive and binding agreement executed by the Company and Buyer), any duty of confidentiality with
respect to, or a duty not to trade on the basis of, any information regarding the Company or any of its subsidiaries (as applicable) that
Buyer receives from the Company, any of its subsidiaries or any of its or its officers, directors, employees, stockholders or agents.


 






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EXECUTION
VERSION


 


(e)            Reservation
of Shares. As long as any of the Purchase Shares and Warrants remain outstanding, the Company shall take all action necessary to at
all times have authorized and reserved for the purpose of issuance, no less than 250% of the shares of Common Stock issuable upon conversion
of the Purchase Shares (assuming the Purchase Shares are convertible in full and without regard to any limitations on the exercise of
the Purchase Shares set forth in the Amended and Restated Articles of Incorporation) or exercise of the Warrants (assuming the Warrants
are exercisable in full and without regard to any limitations on the exercise of the Warrants set forth therein). If the Company determines
that there are not a sufficient number of shares of Common Stock authorized and reserved pursuant to this subsection (e), within ten (10) days
of such determination, the Company shall with the Commission a preliminary proxy statement on Schedule 14A or information statement on
schedule 14C, as applicable.


 


(f)            Conduct
of Business. The business of the Company shall not be conducted in violation of any law, ordinance or regulation of any governmental
entity, except where such violations would not result, either individually or in the aggregate, in a Material Adverse Effect.


 


(g)           Passive
Foreign Investment Company. The Company shall conduct its business in such a manner as will ensure that the Company will not be deemed
to constitute a passive foreign investment company within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986,
as amended.


 


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


 


(i)            Due
Diligence. In connection with any reasonable request by Buyer made in connection with the filing of a Registration Statement, or any
amendment or supplement thereto, Buyer shall have the right, from time to time as Buyer may reasonably deem appropriate, to perform reasonable
due diligence on the Company during normal business hours and subject to reasonable prior notice to the Company. The Company and its officers
and employees shall provide information (“Confidential Information”) and reasonably cooperate with Buyer in connection
with Buyer’s due diligence; provided, however, that at no time is the Company required or permitted
to disclose material nonpublic information to Buyer or breach any obligation of confidentiality or non-disclosure to a third party or
make any disclosure that could cause a waiver of attorney-client privilege. Except as may be required by law, court order or governmental
authority, each party hereto agrees not to disclose any Confidential Information of the other party to any third party and shall not use
the Confidential Information of such other party for any purpose other than in connection with, or in furtherance of, the transactions
contemplated hereby. In the event a party is required by law, court order or governmental authority to disclose the Confidential Information
of the other party, such party shall give the other party written notice of the information to be disclosed as far in advance of its disclosure
as practicable and use its commercially reasonable efforts, and shall reasonably cooperate with the other party’s efforts, to obtain
assurances that confidential treatment will be accorded such information. Each party hereto acknowledges that the Confidential Information
shall remain the property of the disclosing party and agrees that it shall take all reasonable measures to protect the secrecy of any
Confidential Information disclosed by the other party.


 


(j)            Company
Lock-up. The Company, agrees that, without the prior written consent of the Buyers, it will not, for a period of ninety (90) days
after the Closing Date (the “Lock-Up Period”), offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose
of, directly or indirectly, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable
for shares of capital stock of the Company. The restrictions contained in this section shall not apply to (i) the Conversion Shares
and the Warrant Shares; and (ii) the issuance by the Company of Common Stock upon the exercise of an outstanding options or warrants
or the conversion of a security outstanding on the date hereof and disclosed in the SEC Reports, including the Company’s proxy statement
for its 2022 annual meeting of stockholders to be filed with the Commission.


 






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EXECUTION
VERSION


 


(k)            Registration
Rights. Each Buyer hereby acknowledges and agrees that at any time the Company files a registration statement for the resale of shares
held by stockholders of the Company that the Company may also register shares of Common Stock beneficially owned, directly or indirectly,
by David Michery (the “Michery Shares”) and that such registration statement may provide that as a selling stockholder
David Michery also may transfer and donate the shares of Common Stock in which case the transferees, donees, pledgees or other successors
in interest will be selling beneficial owners for purposes of such registration statement. Notwithstanding the foregoing, the number of
Michery Shares that are registered for resale in any registration statement filed by the Company are limited to such number of Michery
Shares that would not cause, for any reason, the reduction or exclusion of the amount of shares held by other stockholders that are registered
on such registration statement.


 


(l)            Application
of Takeover Protections; Rights Agreement; Voting Commitment. The Company may, in its discretion, enter into or adopt an anti-takeover
defense, “poison pill”, shareholder rights plan (including, without limitation, any distribution under a rights agreement),
or any other device designed to prevent stockholders (including the Buyers) from acquiring shares (or additional shares) of capital stock
and any warrants, options or other rights entitling the holder thereof to purchase or acquire any shares that could lead to a hostile
take-over or other Fundamental Transaction which has not been approved by the Company’s incumbent Board of Directors. Furthermore,
each Buyer agrees that at each election of directors of the Company (or each written consent in lieu thereof), whether annual or special
and whether or not an adjourned or postponed meeting, each Buyer agrees to be present for such meeting for purposes of establishing a
quorum, and vote (in person or by proxy), or consent (or cause to be voted or consented) to any action by any written consent or resolution
with respect to Securities and any other equity interests of the Company beneficially owned by Buyer, to elect (or to execute such written
consent consenting to the election of) directors that are proposed or nominated to the Board of Directors by the Company and to vote against
any stockholder nominated candidate not endorsed by the Board.


 


	5.	REGISTER; TRANSFER AGENT INSTRUCTIONS.


 


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


 


(b)           Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer agent in a
form acceptable to Buyer to credit shares to the applicable balance accounts at The Depository Trust Company (“DTC”),
registered in the name of Buyer or its respective nominee(s), for the Conversion Shares and the Warrant Shares in such amounts as specified
from time to time by Buyer to the Company, and confirmed by the Company, upon the conversion of the Purchase Shares or the exercise of
the Warrants (as the case may be). The Company represents and warrants that no instruction other than such irrevocable transfer agent
instructions referred to in this Section 5(b), and stop transfer instructions to give effect to Section 2(f) hereof, will
be given by the Company to its transfer agent with respect to the Securities, and that the Securities shall otherwise be freely transferable
on the books and records of the Company, as applicable, to the extent provided in this Agreement and the other Transaction Documents.
The Company shall cause its counsel to issue the legal opinion referred to in the irrevocable transfer agent instructions to the Company’s
transfer agent on the Closing Date. Any fees (with respect to the transfer agent, counsel to the Company or otherwise) associated with
the issuance of such opinion or the removal of any legends on any of the Securities shall be borne by the Company.


 






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EXECUTION
VERSION


 


(c)           Manner
of Sale. Buyer agrees with the Company that Buyer will sell any Securities pursuant to either the registration requirements of the
Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and acknowledges that the removal
of the restrictive legend from certificates representing Securities as set forth in this Section 5 is predicated upon the Company’s
reliance upon this understanding


 


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


 


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


 


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


 


(b)           Buyer shall have
delivered to the Company the Purchase Amount for the Securities set forth in the Purchase Notice being purchased by Buyer at the Closing
by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.


 


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


 


	7.	CONDITIONS TO BUYER’S OBLIGATION TO PURCHASE. 


 


Notwithstanding anything to the contrary in this
Agreement, the Company shall not be entitled to deliver a Purchase Notice and Buyer shall not be obligated to purchase any Securities
at a Closing unless each of the following conditions are satisfied, provided that these conditions are for Buyer’s
sole benefit and may be waived by Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:


 


(a)            the
Company shall have received the Stockholder Approval;


 


(b)           the
Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware and the Certificate of Designation
shall be in full force and effect;


 


(c)           a
Registration Statement shall have been filed with the Commission and declared effective by the Effectiveness Deadline provided,
however, that for the ten (10) Trading Days prior to effectiveness of the Registration Statement, the average Daily
Trading Volume of the Common Stock is greater than Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000). The Company shall
promptly notify the Buyers via facsimile or by e-mail of the effectiveness of the Registration Statement on the same Trading Day that
the Company telephonically confirms effectiveness with the Commission. The Company shall keep the Registration Statement continuously
effective until the date on which the Securities are no longer outstanding;


 


(d)           The
Company shall have duly executed and delivered to Buyer each of the Transaction Documents to which it is a party and the Company shall
have duly executed and delivered to Buyer the Warrants as is set forth on the applicable Purchase Notice and the Company shall have complied
in all respects with all obligations under this Agreement and the other Transaction Documents, including, without limitation, the Warrants;


 






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EXECUTION
VERSION


 


(e)            at
all times during the period beginning on the Purchase Date and ending on and including the Closing Date, the Common Stock shall have been
listed or quoted for trading on the Principal Market and shall not have been suspended from trading thereon and the Company shall not
have been notified of any pending or threatened proceeding or other action to suspend the trading of the Common Stock;


 


(f)            the
Company has complied with its obligations and is otherwise not in breach of or in default under, this Agreement, or any other agreement
executed between the parties, which has not been cured prior to delivery of the Purchase Notice;


 


(g)           the
issuance of the Securities will
not violate any requirements of the Principal
Market;


 


(h)           the
Company shall have delivered irrevocable transfer agent instructions to the Company’s transfer agent (including any other documentation
required by the transfer agent, such as a legal opinion) to credit Purchase Shares to the applicable balance accounts at DTC registered
in the name of Buyer or its respective nominee(s). Notwithstanding the foregoing, the Company and its transfer agent shall be entitled
to credit Purchase Shares to the applicable balance accounts at DTC, registered in the name of Buyer or its respective nominee(s) within
five (5) business days after the Closing;


 


(i)            each
and every representation and warranty of the Company shall be true and correct in all material respects as of the date when made and as
of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date,
which shall be true and correct in all material respects as of such date) and the Company shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company
at or prior to the Closing Date. Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated
as of the Closing Date, (i) to the foregoing effect, (ii) verifying the accuracy of Section 7(l) herein, and (iii) as
to such other matters as may be reasonably requested by Buyer in the form reasonably acceptable to Buyer;


 


(j)            the
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the
Securities;


 


(k)            no
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents, and no actions, suits or proceedings shall be in progress or pending by any Person that seeks to enjoin,
prohibit or otherwise adversely affect any of the transactions contemplated by the Transaction Documents;


 


(l)            since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material
Adverse Effect and the Company has not filed for nor is it subject to any bankruptcy, insolvency, reorganization or liquidation proceedings
or other proceedings for relief under any bankruptcy law or any law for the relief of debtors instituted by or against the Company; and


 


(m)          the
Company shall have delivered to Buyer such other documents, instruments or certificates relating to the transactions contemplated by this
Agreement reasonably required to consummate the transactions contemplated hereby.


 






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	8.	TERM AND TERMINATION.


 


(a)            Term.
This Agreement shall terminate on the close of business on the ninety first (91st) day after the Resale Effective Date; provided
that if such day is not a Trading Day, then the immediately following Trading Day (the “Termination Date”). Nothing
contained in this Section 8 shall be deemed to release any party from any liability for any breach by such party of the terms and
provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by
any other party of its obligations under this Agreement or the other Transaction Documents.


 


(b)            Failure
to Deliver Purchase Notice. Provided that all conditions set forth in this Agreement have been satisfied by the Company, using its
reasonable best efforts, or waived by the Buyers, if the Company does not deliver a Purchase Notice on the ninetieth (90th)
day following the Resale Effective Date for the entire Commitment Amount (or if such day is not a Trading Day, then the immediately following
Trading Day) then the Company shall pay to the Buyers an aggregate of Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000)
in cash, or the Buyers shall have the option of receiving Twenty Eight Million Five Hundred Thousand shares (28,500,000) shares of Common
Stock that shall be registered on a registration statement (the “Break-up Fee”). If the failure is due solely to the
Company's inability to have the Registration Statement declared effective by the Effectiveness Deadline, then the parties shall use their
best efforts to file and have declared effective a registration statement no later than the 180-day anniversary of such filing (the "Extended
Deadline"). In the event the Company is unable to have a registration statement declared effective by the Extended Deadline,
and the Company has met all of the other conditions precedent under the Transaction Documents, or the Buyers have waived such conditions,
then the Company shall pay to the Buyers the Break-up Fee at that time. The Company agrees that in the event it is unable to have a registration
statement declared effective with respect to issuing Securities to the Buyers, that it shall not file any registration statement (excluding
any registration statement on Form S-8) for another investor for a period of 90-days from the Extended Deadline.


 


(c)            Right
of First Refusal. If the Company fails to deliver a Purchase Notice on the Purchase Date, then during the period ending 180 days after
the Termination Date, the Buyers shall have the right of first refusal to participate in any offering of debt or equity securities (an
 “Offering”) (other than bank debt or similar financing). Each Buyer agrees to notify the Company within five (5) days
of exercise of its right of first refusal. If a Buyer informs the Company that is will not participate in the Offering or fails to exercise
its right of first refusal within the five (5) day period, then the Company may proceed with the Offering without including such
Buyer; provided, however, that if the terms of the Offering are altered in any material respect subsequent
to notifying the Buyers, the Company shall again offer to the Buyers the right of first refusal.


 


	9.	CERTAIN DEFINITIONS


 


(a)            Additional
Investment Rights. “Additional Investment Rights” means the right of certain stockholders to purchase additional
shares of Series C Preferred Stock and warrants until November 5, 2022 as follows: (i) pursuant to the Exchange Agreement
dated as of May 7, 2021 certain Buyers have the right to purchase up to an additional 2,710,255 shares of Series C Preferred
Stock and up to 8,130,765 warrants in amounts equal to not less than 100% nor more than 200% of the amounts originally purchased by such
buyer pursuant to prior securities purchase agreements for notes and (ii) pursuant to a $20 Million securities purchase agreement
a buyer has the right to purchase up to 2,263,970 shares of Series C Preferred Stock and up to 6,791,909 warrants following its original
purchase, in an amount not less than 100% nor more than 200% of the price for the original securities purchased and on the same terms
and conditions amount not less than 100% nor more than 200% of the price for the original securities purchased and on the same terms and
conditions.


 






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(b)           Certificate
of Designation. “Certificate of Designation” means that Certificate of Designation of Series D Preferred Stock
to the Company’s Amended and Restated Certificate of Incorporation, in the form attached hereto as Exhibit C.


 


(c)            Business
Day. “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks in New York,
New York are authorized or required by law to remain closed.


 


(d)           Common
Stock. “Common Stock” means the common stock, par value $0.001 per share, of the Company and any other shares of
stock issued or issuable with respect thereto (whether by way of a stock dividend or stock split or in exchange for or upon conversion
of such shares or otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other corporate
reorganization or other similar event with respect to the Common Stock).


 


(e)           Contingent
Obligation. “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise,
of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent
of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such
liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability
will be protected (in whole or in part) against loss with respect thereto.


 


(f)            Convertible
Securities. “Convertible Securities” means any capital stock or other security of the Company that is at any time
and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the
holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock).


 


(g)            Daily
Trading Volume. “Daily Trading Volume” means for any security the aggregate dollar value of all trades in such
security on the principal securities exchange or trading market where such security is listed or traded for the entirety of a Trading
Day as reported by Bloomberg (without regard to (i) pre-open or after-hours trading outside of any regular trading session for such
Trading Day or (ii) block trades.


 


(h)           Effectiveness
Deadline. “Effectiveness Deadline” means, with respect to the Registration Statement required to be filed hereunder,
the 90th calendar day following the date hereof.


 


(i)            Environmental
Laws. “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.


 


(j)            Exchange
Act. “Exchange Act” means the Securities Exchange Act of 1934, as amended.


 


(k)           Indebtedness.
 “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all
obligations issued, undertaken or assumed as the purchase price of property or assets, including indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets
acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property), other than trade payables entered into in the ordinary course
of business, (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments,
(D) all obligations evidenced by notes, bonds, debentures or similar instruments, (E) all monetary obligations under any leasing
or similar arrangement which, in connection with generally accepted accounting principles, consistently applied for the periods covered
thereby, is classified as a capital lease, (F) all indebtedness referred to in clauses (A) through (E) above secured by
(or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge,
charge, security interest or other encumbrance upon or in any material property or assets (including accounts and contract rights) owned
by such Person, even though the Person has not assumed or become liable for the payment of such indebtedness, and (G) all Contingent
Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (F) above.


 






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(l)            Insolvent.
 “Insolvent” means the present fair saleable value of the Company’s assets is less than the amount required to
pay the Company’s total Indebtedness (as defined below).


 


(m)          Lien.
 “Lien” means any lien, mortgage, pledge, encumbrance, charge, security interest, adverse claim, liability, interest,
charge, preference, priority, proxy, transfer restriction (other than restrictions under the Securities Act and state securities laws),
encroachment, tax, order, community property interest, equitable interest, option, warrant, right of first refusal, easement, profit,
license, servitude, right of way, covenant or zoning restriction.


 


(n)           Market
Price. “Market Price” means the lower of (i) $1.274 or (ii) the Trading Day immediately preceding
the Purchase Notice Date.


 


(o)           Material
Adverse Effect. “Material Adverse Effect” means any material adverse effect on (i) the business, properties,
assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company and its subsidiaries,
taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or (iii) the authority
or ability of the Company or any of its subsidiaries to perform any of its respective obligations under any of the Transaction Documents
(as defined below).


 


(p)           Maximum
Percentage. “Maximum Percentage” means 9.99%.


 


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


 


(r)            Principal
Market. “Principal Market” means the New York Stock Exchange, the NYSE American, the Nasdaq Capital Market, the
Nasdaq Global Market, or the Nasdaq Global Select Market, whichever is the principal market on which the Common Stock is listed.


 


(s)           Purchase
Amount. “Purchase Amount” means the total amount being paid by a Buyer on the Closing Date to purchase Securities.


 


(t)            Purchase
Notice Date. “Purchase Notice Date” means the Trading Day on which Buyer receives a Purchase Notice.


 


(u)           Registration
Statement. “Registration Statement” means a Form S-3 shelf registration statement on Form S-3 covering
the registration and issuance of securities by the Company, including not less than 250% of Conversion Shares and Warrant Shares, pursuant
to Rule 415 promulgated under the Securities Act.


 


 


 



4 The closing price of the Common Stock as reported on the Principal Market on the date of execution of this Agreement.




 






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(v)           Resale
Effective Date. “Resale Effective Date” means the date on which the Commission declares effective a registration
statement covering the registration for resale of securities issued pursuant to the Additional Investment Rights.


 


(w)          Rule 144.
 “Rule 144” means Rule 144 promulgated by the Commission under the Securities Act, as such rule may be
amended from time to time, or any other similar or successor rule or regulation of the Commission that may at any time permit the
Buyers to sell securities of the Company to the public without registration.


 


(x)            Short
Sales. “Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the
Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).


 


(y)           Trading
Day. “Trading Day” means, as applicable, (x) with respect to all price determinations relating to the Common
Stock, any day on which the Common Stock is traded on the principal securities exchange or securities market on which the Common Stock
is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled
to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended from trading during the final
hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on
such exchange or market, then during the hour ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading
Day in writing by the Buyer or (y) with respect to all determinations other than price determinations relating to the Common Stock,
any day on which The New York Stock Exchange (or any successor thereto) is open for trading of securities.


 


(z)            Transaction
Documents. “Transaction Documents” means, collectively, this Agreement, the Certificate of Designation, the Warrants,
and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection with the transactions
contemplated hereby and thereby, as may be amended from time to time.


 


	10.	MISCELLANEOUS.


 


(a) Governing Law; Jurisdiction; Jury Trial.


 


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


 






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


 


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


 


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


 


(e) Entire Agreement;
Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto and the instruments
referenced herein and therein supersede all other prior oral or written agreements between the Buyer, the Company, its affiliates and
Persons acting on its behalf solely with respect to the matters contained herein and therein, and this Agreement, the other Transaction
Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein contain the entire
understanding of the parties solely with respect to the matters covered herein and therein. Except as specifically set forth herein or
therein, neither the Company nor Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. For clarification
purposes, the Recitals are part of this Agreement. No provision of this Agreement may be amended other than by an instrument in writing
signed by the Company and Buyer. No waiver shall be effective unless it is in writing and signed by an authorized representative of the
waiving party. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision
of any of the Transaction Documents unless the same consideration also is offered to all of the parties to the Transaction Documents or
all holders of the Warrants (as the case may be). The Company has not, directly or indirectly, made any agreements with Buyer relating
to the terms or conditions of the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents.
Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement, no Buyer has made any commitment or
promise or has any other obligation to provide any financing to the Company or otherwise. As a material inducement for Buyer to enter
into this Agreement, the Company expressly acknowledges and agrees that no due diligence or other investigation or inquiry conducted by
Buyer, any of its advisors or any of its representatives shall affect Buyer’s right to rely on, or shall modify or qualify in any
manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other Transaction
Document.


 






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EXECUTION
VERSION


 


(f) Notices. Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered when sent, if sent by e-mail (provided that such sent e-mail is kept on file (whether electronically
or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s
e-mail server that such e-mail could not be delivered to such recipient). The e-mail addresses for such communications shall be:


 


If to the Company:


Mullen Automotive Inc.


1405 Pioneer Street


Brea, California 92821


Attention: David Michery, CEO


Email: david@mullenusa.com


 


With a copy (for informational purposes
only) to:


Manatt, Phelps & Phillips,
LLP


695 Town Center Drive, 14th Floor


Costa Mesa, California 92626


Attn: Thomas J. Poletti


 


If to Buyer:


See signature pages attached hereto


 


or to such other e-mail address and/or to the
attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior
to the effectiveness of such change. A copy of the e-mail transmission containing the time, date and recipient e-mail address shall be
rebuttable evidence of receipt by e-mail.


 


(g) Successors and
Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and its successors and assigns, including, as
contemplated below, any assignee of any of the Securities. The Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Buyer, including, without limitation, by way of a Fundamental Transaction (as defined in the
Warrants) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Warrants).


 


(h) No Third Party
Beneficiaries. This Agreement is intended for the benefit of the parties hereto and its permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by, any other Person, other than the Indemnitees referred to in Section 10(k).


 


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


 


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


 






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(k) Indemnification.


 





(i) In consideration of
Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the
Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless Buyer
and each holder of any Securities and all of their stockholders, partners, members, officers, directors, employees and direct or indirect
Buyers 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 reasonable and documented 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 any of the Transaction Documents, (b) any breach of any covenant, agreement or obligation of the Company contained in
any of the Transaction Documents or (c) any cause of action, suit, proceeding or claim brought or made against such Indemnitee by
a third party (including for these purposes a derivative action brought on behalf of the Company, but other than by an affiliate of Buyer)
or which otherwise involves such Indemnitee that arises out of or results from (i) the execution, delivery, performance or enforcement
of any of the Transaction Documents, (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, (iii) any disclosure properly made by Buyer pursuant to Section 4(e), or
(iv) the status of Buyer or holder of the Securities either as an Buyer in the Company pursuant to the transactions contemplated
by the Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any
action or proceeding for injunctive or other equitable relief), unless such action is based primarily upon a breach of Buyer’s representations,
warranties, or covenants under the Transaction Documents, or any agreements or understandings Buyer may have with any such third party,
or any violations by Buyer of state or federal securities laws or any conduct by Buyer which constitutes fraud, gross negligence or willful
misconduct. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.


 


(ii) Promptly after receipt
by an Indemnitee under this Section 10(k) of notice of the commencement of any action or proceeding (including any governmental
action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim in respect thereof is to be made against the
Company under this Section 10(k), deliver to the Company a written notice of the commencement thereof, and the Company shall have
the right to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually
satisfactory to the Company and the Indemnitee; provided, however, that an Indemnitee shall have the right
to retain its own counsel with the fees and expenses of such counsel to be paid by the Company if: (i) the Company has agreed in
writing to pay such fees and expenses; (ii) the Company shall have failed promptly to assume the defense of such Indemnified Liability
and to employ counsel reasonably satisfactory to such Indemnitee in any such Indemnified Liability; or (iii) the named parties to
any such Indemnified Liability (including any impleaded parties) include both such Indemnitee and the Company, and such Indemnitee shall
have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnitee and
the Company (in which case, if such Indemnitee notifies the Company in writing that it elects to employ separate counsel at the expense
of the Company, then the Company shall not have the right to assume the defense thereof and such counsel shall be at the expense of the
Company), provided further, that in the case of clause (iii) above the Company shall not be responsible for the reasonable
fees and expenses of more than one (1) separate legal counsel for such Indemnitee. The Indemnitee shall reasonably cooperate with
the Company in connection with any negotiation or defense of any such action or Indemnified Liability by the Company and shall furnish
to the Company all information reasonably available to the Indemnitee which relates to such action or Indemnified Liability. The Company
shall keep the Indemnitee reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect
thereto. The Company shall not be liable for any settlement of any action, claim or proceeding effected without its prior written consent,
provided, however, that the Company shall not unreasonably withhold, delay or condition its consent. The Company
shall not, without the prior written consent of the Indemnitee, consent to entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release
from all liability in respect to such Indemnified Liability or litigation, and such settlement shall not include any admission as to fault
on the part of the Indemnitee. Following indemnification as provided for hereunder, the Company shall be subrogated to all rights of the
Indemnitee with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The
failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall not relieve the
Company of any liability to the Indemnitee under this Section 10(k), except to the extent that the Company is materially and adversely
prejudiced in its ability to defend such action.


 






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


 


(iv) Notwithstanding any
provision in this Agreement or any other Transaction Documents, the aggregate indemnification obligations of the Company pursuant to this
Section 10(k) shall not exceed 100% of the aggregate Purchase Price actually paid by the Buyer.


 


(v) The sole and exclusive
remedies for any breach of any representation, warranty, covenant or agreement hereunder shall be the indemnification provided by this
Section 10(k), and Buyer expressly waives any other rights or remedies it may have; provided however, that equitable
relief, including remedies of specific performance and injunction, shall be available with respect to any matter where money damages would
not be sufficient to compensate Buyer or to preserve the rights of Buyer pending resolution of a dispute, and this Section 10(k) shall
not relieve the Company from liability for willful misconduct, gross negligence, bad faith, fraud or willful breach of any of its representations,
warranties, covenants or agreements set forth in this Agreement.


 


(l) Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party. No specific representation or warranty shall limit the generality or applicability
of a more general representation or warranty. Each and every reference to share prices, Common Stock and any other numbers in this Agreement
that relate to the Common Stock shall be automatically adjusted for stock dividends, stock splits, stock combinations and other similar
transactions that occur with respect to the Common Stock after the date of this Agreement.


 


(m) Remedies.
Buyer and each holder of any Securities shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies
which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under
any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without
posting a bond or other security, to the extent permitted by law), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. Furthermore, the Company recognizes that in the event that it fails to perform,
observe, or discharge any or all of its obligations under the Transaction Documents, any remedy at law may prove to be inadequate relief
to Buyer. The Company therefore agrees that Buyer shall be entitled to seek specific performance and/or temporary, preliminary and permanent
injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual
damages and without posting a bond or other security.


 






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(n) Exercise of Right.
Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents, whenever
Buyer exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations
within the periods therein provided, then Buyer may continue to exercise it other rights, elections, demands and options hereunder and
under any other Transaction Document from time to time as if such original right, election, demand or option had not been exercised without
prejudice to its future actions and rights and remedies.


 


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


 


[signature pages follow]


 






    	 	25	 



     


    

 


EXECUTION
VERSION


 


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


  


	 	COMPANY:
	 	MULLEN AUTOMOTIVE INC.
	 	 	 
	 	By:	/s/ David Michery
	 	Name:	David Michery
	 	Title:	CEO


 


[Signature page to Securities Purchase Agreement]


 






     

     


    

 


EXECUTION
VERSION


 


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


 


	 	BUYER:
	 	 
	 	By:	                
	 	Name:	 
	 	Title:	 


 


	Address:	 
	 	 
	 	 
	 	 
	 	 
	Email:	 	 
	 	 
	Phone:	 	 




 


[Signature page to Securities Purchase Agreement]


 






     

     


    

 


EXHIBIT A


 


FORM OF WARRANT


 


Attached


 






     

     


    

  


Warrant


 


MULLEN AUTOMOTIVE INC.


 


Warrant
To Purchase Common Stock


 


Date of Issuance: [●], 2022 (“Issuance
Date”)


 


Mullen Automotive Inc., a Delaware corporation (the “Company”),
hereby certifies that, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, _________________,
the registered holder hereof or its permitted assigns (the “Holder”), is entitled, subject to the terms set forth below,
to purchase from the Company, at the Exercise Price (as defined below) then in effect, upon exercise of this Warrant to Purchase Common
Stock (including any Warrants to Purchase Common Stock issued in exchange, transfer or replacement hereof, the “Warrant”),
at any time or times on or after the Issuance Date, but not after 11:59 p.m., New York time, on the Expiration Date (as defined below),
_______________ (subject to adjustment as provided herein) fully paid and non-assessable shares of Common Stock (as defined below)
(the “Warrant Shares”). Except as otherwise defined herein, capitalized terms in this Warrant shall have the meanings
set forth in Section 16. This Warrant is one of the Warrants to purchase Series D Preferred Stock (the “SPA Warrants”)
issued to Holder pursuant to that certain Securities Purchase Agreement dated June 7, 2022 by and between the Company and the Holder
(the “Securities Purchase Agreement”).


 






    	 	A-1	 



     


    

 


1.            EXERCISE
OF WARRANT.


 


(a)            Mechanics
of Exercise. Subject to the terms and conditions hereof (including, without limitation, the limitations set forth in Section 1(f)),
this Warrant may be exercised by the Holder on any day on or after the Issuance Date in whole or in part, by delivery (whether via facsimile
or otherwise) of a written notice, in the form attached hereto as Exhibit A (the “Exercise Notice”),
of the Holder’s election to exercise this Warrant. Within one (1) Trading Day following an exercise of this Warrant as aforesaid,
the Holder shall deliver payment to the Company of an amount equal to the Exercise Price in effect on the date of such exercise multiplied
by the number of Warrant Shares as to which this Warrant was so exercised (in respect of such specific exercise, the “Aggregate
Exercise Price”) in cash or via wire transfer of immediately available funds if the Holder did not notify the Company in such
Exercise Notice that such exercise was made pursuant to a Cashless Exercise (as defined in Section 1(d)). The Holder shall not be
required to deliver the original of this Warrant in order to effect an exercise hereunder. Execution and delivery of an Exercise Notice
with respect to less than all of the Warrant Shares shall have the same effect as cancellation of the original of this Warrant certificate
and issuance of a new Warrant certificate evidencing the right to purchase the remaining number of Warrant Shares. Execution and delivery
of an Exercise Notice for all of the then-remaining Warrant Shares shall have the same effect as cancellation of the original of this
Warrant certificate after delivery of the Warrant Shares in accordance with the terms hereof. On or before the first (1st) Trading Day
following the date on which the Company has received an Exercise Notice, the Company shall transmit by facsimile an acknowledgment of
confirmation of receipt of such Exercise Notice, in the form attached hereto as Exhibit B, to the Holder and the Company’s
transfer agent (the “Transfer Agent”). On or before the second (2n d) Trading Day following the date on which the Company
has received such Exercise Notice (the “Required Delivery Date”), the Company shall (i) provided
that the Transfer Agent is participating in The Depository Trust Company (“DTC”) Fast Automated Securities Transfer
Program (which the Company shall cause the Transfer Agent to do at Holder’s request) and provided the legends would be eligible
to be removed from such shares of Common Stock pursuant to Section 5(d) of the Securities Purchase Agreement, upon the request
of the Holder, credit such aggregate number of shares of Common Stock to which the Holder is entitled pursuant to such exercise to the
Holder’s or its designee’s balance account with DTC through its Deposit/ Withdrawal at Custodian system, or (ii) if the
Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program or the legends would not be eligible to be removed
from such shares of Common Stock pursuant to Section 5(d) of the Securities Purchase Agreement, issue and deliver to the Holder
or, at the Holder’s instruction pursuant to the Exercise Notice, the Holder’s agent or designee, in each case, sent by reputable
overnight courier to the address as specified in the applicable Exercise Notice, a certificate, registered in the Company’s share
register in the name of the Holder or its designee (as indicated in the applicable Exercise Notice), for the number of shares of Common
Stock to which the Holder is entitled pursuant to such exercise. Upon delivery of an Exercise Notice, the Holder shall be deemed for all
corporate purposes to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective
of the date such Warrant Shares are credited to the Holder’s DTC account or the date of delivery of the certificates evidencing
such Warrant Shares (as the case may be). If this Warrant is submitted in connection with any exercise pursuant to this Section 1(a) and
the number of Warrant Shares represented by this Warrant is greater than the number of Warrant Shares being acquired upon an exercise,
then, at the request of the Holder and upon surrender hereof by the Holder at the principal office of the Company, the Company shall as
soon as practicable and in no event later than three (3) Business Days after any exercise and at its own expense, issue and deliver
to the Holder (or its designee) a new Warrant (in accordance with Section 7(d)) representing the right to purchase the number of
Warrant Shares purchasable immediately prior to such exercise under this Warrant, less the number of Warrant Shares with respect to which
this Warrant is exercised. No fractional shares of Common Stock are to be issued upon the exercise of this Warrant, but rather the number
of shares of Common Stock to be issued shall be rounded up to the nearest whole number. The Company shall pay any and all taxes and fees
which may be payable with respect to the issuance and delivery of Warrant Shares upon exercise of this Warrant.


 


(b)            Exercise
Price. For purposes of this Warrant, “Exercise Price” means $[●]1, subject to adjustment as provided
herein.


 





 



1 Insert the
lower of (i) $1.27 or (ii) the Trading Day immediately preceding the Purchase Notice Date.


 






    	 	A-2	 



     


    

 


(c)            Company’s
Failure to Timely Deliver Securities. If the Company fails to issue and deliver (or cause to be delivered) to the Holder by the Required
Delivery Date a certificate representing the Warrant Shares that is free from all restrictive and other legends or credit the balance
account of Holder or Holder’s nominee with DTC for such number of Warrant Shares so delivered to the Company, then, in addition
to all other remedies available to Holder, at the sole discretion of Holder, the Company shall:


 


(i)            pay
in cash to Holder on each Trading Day after the Required Delivery Date that the issuance or credit of such Warrant Shares is not timely
effected an amount equal to 1 % of the product of (A) the number of shares of Common Stock not so delivered or credited (as the case
may be) to Holder or Holder’s nominee multiplied by (B) the Closing Sale Price of the Common Stock on the Trading Day immediately
preceding the Required Delivery Date; or


 


(ii)            if
on or after the Required Delivery Date, Holder (or any other Person in respect, or on behalf, of Holder) purchases (in an open market
transaction or otherwise) Common Stock (“Replacement Shares”) to deliver in satisfaction of a sale by Holder of all
or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of
the number of shares of Common Stock, that Holder so anticipated receiving from the Company without any restrictive legend, then, within
five (5) Trading Days after Holder’s request and in Holder’s sole discretion, either (A) pay cash to Holder in an
amount equal to Holder’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the
Replacement Shares (the “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate
or credit Holder’s balance account shall terminate and such shares shall be cancelled, or (B) promptly honor its obligation
to so deliver to Holder a certificate or certificates or credit Holder’s DTC account representing such number of shares of Common
Stock that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash to Holder in an amount
equal to the excess (if any) of the Buy-In Price over the product of (1) such number of shares of Common Stock that the Company was
required to deliver to Holder by the Required Delivery Date multiplied by (2) the lowest Closing Sale Price of the Common Stock on
any Trading Day during the period commencing on the date Holder purchased Replacement Shares and ending on the date of such delivery and
payment under this clause (ii).


 


To the extent permitted by law, the Company’s
obligations to issue and deliver the Common Stock upon exercise of the Warrant in accordance with the terms hereof are absolute and unconditional,
irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof,
the recovery of any judgment against any person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other person of any obligation to the Company or any violation or
alleged violation of law by the Holder or any other person, and irrespective of any other circumstance that might otherwise limit such
obligation of the Company to the Holder in connection with the issuance of the Common Stock. Nothing herein shall limit the Holder’s
right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver the Common Stock issuable upon exercise
of this Warrant as required pursuant to the terms hereof.


 






    	 	A-3	 



     


    

 


(d)            Cashless
Exercise. Notwithstanding anything contained herein to the contrary (other than Section 1(f) below) at any time the Holder
may in its sole discretion (and without limiting the Holder’s rights and remedies contained herein or in any of the other Transaction
Documents (as defined in the Securities Purchase Agreement)), exercise this Warrant in whole or in part and, in lieu of making the cash
payment otherwise contemplated to be made to the Company upon such exercise in payment of the Aggregate Exercise Price, elect instead
to receive upon such exercise the “Net Number” of shares of Common Stock determined according to the following formula (a
 “Cashless Exercise”):


  


Net Number = (A x B) / C


 


For purposes of the foregoing formulas:


 


A=     The
total number of shares with respect to which this Warrant is then being exercised.


B=     The
Black Scholes Value (as defined in Section 16 herein).


C=     The
lower of the two Closing Bid Prices of the Common Stock in the two days prior the time of such exercise (as such Closing Bid Price is
defined in Section 16 herein), but in any event not less than $0.01(as may be adjusted for stock dividends, subdivisions, or combinations
in the manner described in Section 2(a) herein).


 


(e)            Disputes.
In the case of a dispute as to the determination of the Exercise Price or the arithmetic calculation of the number of Warrant Shares to
be issued pursuant to the terms hereof (including, without limitation, the Net Number), the Company shall promptly issue to the Holder
the number of Warrant Shares that are not disputed, provided that following such issuance to Holder such dispute shall be
resolved in accordance with Section 13.


 


(f)            Limitations
on Exercises and Exchanges. Notwithstanding anything to the contrary contained in this Warrant, this Warrant shall not be exercisable
or exchangeable by the Holder hereof to the extent (but only to the extent) that the Holder or any of its affiliates would beneficially
own in excess of 9.99% of the number of shares of Common Stock outstanding after giving effect to the issuance of Common Stock issuable
upon exercise of the Warrants calculated in accordance with Section 13(d) of the Exchange Act (the “Maximum Percentage”).
To the extent the above limitation applies, the determination of whether this Warrant shall be exercisable or exchangeable (vis-à-vis
other convertible, exercisable or exchangeable securities owned by the Holder or any of its affiliates) and of which such securities shall
be exercisable or exchangeable (as among all such securities owned by the Holder) shall, subject to such Maximum Percentage limitation,
be determined on the basis of the first submission to the Company for conversion, exercise or exchange (as the case may be). No prior
inability to exercise or exchange this Warrant pursuant to this paragraph shall have any effect on the applicability of the provisions
of this paragraph with respect to any subsequent determination of exercisability or exchangeability. For the purposes of this paragraph,
beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage
ownership) shall be determined in accordance with Section 13(d) of the 1934 Act (as defined in the Securities Purchase Agreement)
and the rules and regulations promulgated thereunder. The provisions of this paragraph shall be implemented in a manner otherwise
than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or
inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary
or desirable to properly give effect to such Maximum Percentage limitation. The limitations contained in this paragraph shall apply to
a successor Holder of this Warrant. The holders of Common Stock shall be third party beneficiaries of this paragraph and the Company may
not waive this paragraph without the consent of holders of a majority of its Common Stock. For any reason at any time, upon the written
or oral request of the Holder, the Company shall within two (2) Business Days confirm orally and in writing to the Holder the number
of shares of Common Stock then outstanding, including by virtue of any prior conversion or exercise or exchange of convertible or exercisable
or exchangeable securities into shares of Common Stock, including, without limitation, pursuant to this Warrant or securities issued pursuant
to the Securities Purchase Agreement.


 






    	 	A-4	 



     


    

 


(g)            Reservation
of Shares; Insufficient Authorized Shares. The Company shall initially reserve out of its authorized and unissued shares of Common
Stock a number of shares of Common Stock equal to 250% of the maximum number of Warrant Shares issuable to satisfy the Company's obligations
to issue shares of Common Stock hereunder, and the Company shall at all times keep reserved for issuance under this Warrant a number of
shares of Common Stock equal to 250% of the maximum number of Warrant Shares issuable to satisfy the Company’s obligation to issue
shares of Common Stock hereunder.


 


(h)            Activity
Restrictions. For so long as Holder holds this Warrant or any Warrant Shares, Holder will not: (i) engage or participate in any
actions, plans or proposals which relate to or would result in (a) acquiring additional securities of the Company, alone or together
with any other Person, which would result in beneficially owning or controlling, or being deemed to beneficially own or control, more
than 9.99% of the total outstanding shares of Common Stock or other voting securities of the Company, (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving Company, (c) a sale or transfer of a material amount of assets
of the Company, (d) any change in the present board of directors or management of the Company, including any plans or proposals to
change the number or term of directors or to fill any existing vacancies on the board, (e) any material change in the present capitalization
or dividend policy of the Company, (f) any other material change in the Company’s business or corporate structure, including
but not limited to, if the Company is a registered closed-end investment company, any plans or proposals to make any changes in its investment
policy for which a vote is required by Section 13 of the Investment Company Act of 1940, (g) changes in the Company’s
charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any
Person, (h) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized
to be quoted in an inter-dealer quotation system of a registered national securities association, (i) a class of equity securities
of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Act, or (j) any action,
intention, plan or arrangement similar to any of those enumerated above, or (ii) request the Company or its directors, officers,
employees, agents or representatives to amend or waive any provision of this Section 1(h); provided, however,
that notwithstanding anything to the contrary contain in clauses (i) and (ii) above, Holder may vote any shares of Common Stock
owned or controlled by it, solicit any proxies, or seek to advise or influence any Person with respect to any voting securities of the
Company. Holder may only exercise this Warrant for a cash exercise price if the trading price at the time of exercise is greater than
the then applicable Exercise Price.


 


2.            ADJUSTMENT
OF EXERCISE PRICE AND NUMBER OF WARRANT SHARES. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant
are subject to adjustment from time to time as set forth in this Section 2.


 






    	 	A-5	 



     


    

 


(a)            Stock
Dividends and Splits. Without limiting any provision of Section 4, if the Company, at any time on or after the date of the Securities
Purchase Agreement, (i) pays a stock dividend on one or more classes of its then outstanding shares of Common Stock or otherwise
makes a distribution on any class of capital stock that is payable in Common Stock, (ii) subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its then outstanding shares of Common Stock into a larger number of shares or (iii) combines
(by combination, reverse stock split or otherwise) one or more classes of its then outstanding shares of Common Stock into a smaller number
of shares, then in each such case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares
of Common Stock outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding
immediately after such event. Any adjustment made pursuant to clause (i) of this paragraph shall become effective immediately after
the record date for the determination of shareholders entitled to receive such dividend or distribution, and any adjustment pursuant to
clause (ii) or (iii) of this paragraph shall become effective immediately after the effective date of such subdivision or combination.
If any event requiring an adjustment under this paragraph occurs during the period that an Exercise Price is calculated hereunder, then
the calculation of such Exercise Price shall be adjusted appropriately to reflect such event.


 


(b)            Adjustment
Upon Issuance of Common Stock. If, during the Restricted Period (as defined in the Securities Purchase Agreement), the Company effects
an Subsequent Financing (as defined in the Securities Purchase Agreement), or in accordance with this Section 2 is deemed to have
effected an Subsequent Financing, any Common Stock (including the issuance or sale of Common Stock owned or held by or for the account
of the Company) issued or sold or deemed to have been issued or sold) for a consideration per share (the “New Issuance Price”)
less than a price equal to the Exercise Price in effect immediately prior to such issue or sale or deemed issuance or sale (such Exercise
Price then in effect is referred to as the “Applicable Price”) (the foregoing a “Dilutive Issuance”),
then immediately after such Dilutive Issuance, the Exercise Price then in effect shall be reduced (and in no event increased) to the price
per share as determined in accordance with the following formula:


 


EP2 = EP1 x (A + B) / (A + C)


 


For purposes of the foregoing formula:


 


A=     The
total number of Warrant Shares with respect to which this Warrant may be exercised.


B=     The
total number of shares of Common Stock that would be issued or issuable under the Dilutive Issuance if issued at a per share equal to
EP1.


C=     The
total number of shares of Common Stock actually issued or issuable under the Dilutive Issuance.


EP1= The Exercise Price in
effect immediately prior to a Dilutive Issuance.


EP2= The Exercise Price immediately
after such Dilutive Issuance; provided, however, that such price shall in no event be less than $0.01 per
share of Common Stock (as may be adjusted for stock dividends, subdivisions, or combinations in the manner described in Section 2(a) herein,
the “Floor Price”);


 



    	 	A-6	 



     


    

 


provided,
that if such issuance or sale (or deemed issuance or sale) was without consideration, then the Company shall be deemed to have received
the Floor Price for each such share so issued or deemed to be issued. For all purposes of the foregoing (including, without limitation,
determining the adjusted Exercise Price and consideration per share under this Section 2(b)), the following shall be applicable:


 


(i)            Issuance
of Options. If, during the Restricted Period, the Company in any manner grants or sells any Options and the lowest price per share
for which one share of Common Stock is issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible
Securities issuable upon exercise of any such Option is less than the Applicable Price, then such share of Common Stock shall be deemed
to be outstanding and to have been issued and sold by the Company at the time of the granting or sale of such Option for such price per
share. For purposes of this Section 2(b)(i), the “lowest price per share for which one share of Common Stock is issuable upon
the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any
such Option” shall be equal to (A) the sum of the lowest amounts of consideration (if any) received or receivable by the Company
with respect to any one share of Common Stock upon the granting or sale of such Option, upon exercise of such Option and upon conversion,
exercise or exchange of any Convertible Security issuable upon exercise of such Option minus (B) the sum of all amounts paid or payable
to the holder of such Option (or any other Person) upon the granting or sale of such Option, upon exercise of such Option and upon conversion,
exercise or exchange of any Convertible Security issuable upon exercise of such Option plus the value of any other consideration received
or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment
of the Exercise Price shall be made upon the actual issuance of such Common Stock or of such Convertible Securities upon the exercise
of such Options or upon the actual issuance of such Common Stock upon conversion, exercise or exchange of such Convertible Securities.


 


(ii)            Issuance
of Convertible Securities. If, during the Restricted Period, the Company in any manner issues or sells any Convertible Securities
and the lowest price per share for which one share of Common Stock is issuable upon the conversion, exercise or exchange thereof is less
than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company
at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes of this Section 2(b)(ii),
the “lowest price per share for which one share of Common Stock is issuable upon the conversion, exercise or exchange thereof”
shall be equal to (A) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect
to one share of Common Stock upon the issuance or sale of the Convertible Security and upon conversion, exercise or exchange of such Convertible
Security minus (B) the sum of all amounts paid or payable to the holder of such Convertible Security (or any other Person) upon the
issuance or sale of such Convertible Security plus the value of any other consideration received or receivable by, or benefit conferred
on, the holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Exercise
Price shall be made upon the actual issuance of such Common Stock upon conversion, exercise or exchange of such Convertible Securities,
and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of this Warrant
has been or is to be made pursuant to other provisions of this Section 2(b), except as contemplated below, no further adjustment
of the Exercise Price shall be made by reason of such issue or sale.


 






    	 	A-7	 



     


    

 


(iii)            Change
in Option Price or Rate of Conversion. If, during the Restricted Period, the purchase or exercise price provided for in any Options,
the additional consideration, if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate
at which any Convertible Securities are convertible into or exercisable or exchangeable for Common Stock increases or decreases at any
time, the Exercise Price in effect at the time of such increase or decrease shall be adjusted to the Exercise Price which would have been
in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional
consideration or increased or decreased conversion rate, as the case may be, at the time initially granted, issued or sold. For purposes
of this Section 2(b)(iii), if the terms of any Option or Convertible Security that was outstanding as of the date of issuance of
this Warrant are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible
Security and the Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of
the date of such increase or decrease. No adjustment pursuant to this Section 2(b) shall be made if such adjustment would result
in an increase of the Exercise Price then in effect.


 


(iv)            Calculation
of Consideration Received. If, during the Restricted Period, any Option or Convertible Security is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company, together comprising one integrated transaction, (A) such
Option or Convertible Security (as applicable) will be deemed to have been issued for consideration equal to the Black Scholes Value –
Consideration thereof and (B) the other securities issued or sold or deemed to have been issued or sold in such integrated transaction
shall be deemed to have been issued for consideration equal to the difference of (1) the aggregate consideration received by the
Company, minus (2) the Black Scholes Value – Consideration of each such Option or Convertible Security (as applicable). If
any Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration
received therefor will be deemed to be the net amount of consideration received by the Company therefor. If any Common Stock, Options
or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received by the Company
will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the
amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each
of the five (5) Trading Days immediately preceding the date of receipt. If any Common Stock, Options or Convertible Securities are
issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount
of consideration therefor will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity
as is attributable to such Common Stock, Options or Convertible Securities, as the case may be. The fair value of any consideration other
than cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach
agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the
fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation
Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall
be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.


 






    	 	A-8	 



     


    

 


(v)            Record
Date. If, during the Restricted Period, the Company takes a record of the holders of Common Stock for the purpose of entitling them
(A) to receive a dividend or other distribution payable in Common Stock, Options or in Convertible Securities or (B) to subscribe
for or purchase Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issue or sale
of the Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase (as the case may be).


 


(c)            Reserved.


 


(d)            Reserved.


 


(e)           Other
Events. In the event that the Company shall take any action to which the provisions hereof are not strictly applicable, or, if applicable,
would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions of this Section 2
but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock
rights or other rights with equity features), then the Company’s board of directors shall in good faith determine and implement
an appropriate adjustment in the Exercise Price and the number of Warrant Shares (if applicable) so as to protect the rights of the Holder,
provided that no such adjustment pursuant to this Section 2(e) will increase the Exercise Price or decrease the
number of Warrant Shares as otherwise determined pursuant to this Section 2, provided further that if the Holder does
not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the Company’s board
of directors and the Holder shall agree, in good faith, upon an independent investment bank of nationally recognized standing to make
such appropriate adjustments, whose determination shall be final and binding and whose fees and expenses shall be borne by the Company.


 


3.            RIGHTS
UPON DISTRIBUTION OF ASSETS. In addition to any adjustments pursuant to Section 2 above, if the Company shall declare or make
any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Common Stock, by way of return of capital
or otherwise (including, without limitation, any distribution of cash, stock or other securities, indebtedness, property or options by
way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction, other than
a distribution of Common Stock covered by Section 2(a)) (a “Distribution”), at any time after the issuance of
this Warrant, then, in each such case, provision shall be made so that upon exercise of this Warrant, the Holder shall be entitled to
participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number
of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including
without limitation, the Maximum Percentage) immediately before the date on which a record is taken for such Distribution, or, if no such
record is taken, the date as of which the record holders of Common Stock are to be determined for the participation in such Distribution
(provided, however, to the extent that the Holder’s right to participate in any such Distributions would
result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled to participate in such Distribution to such
extent (or the beneficial ownership of any such Common Stock as a result of such Distribution to such extent) and such Distribution to
such extent shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in
the Holder exceeding the Maximum Percentage).


 






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4.            PURCHASE
RIGHTS; FUNDAMENTAL TRANSACTIONS.


 


(a)            Purchase
Rights. In addition to any adjustments pursuant to Section 2 above, if at any time the Company grants, issues or sells any Options,
Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class
of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to
such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of
Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without
limitation, the Maximum Percentage) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase
Rights, or, if no such record is taken, the date as of which the record holders of Common Stock are to be determined for the grant, issue
or sale of such Purchase Rights (provided, however, to the extent that the Holder’s right to participate
in any such Purchase Right would result in the Holder exceeding the Maximum Percentage, then the Holder shall not be entitled to participate
in such Purchase Right to such extent (or beneficial ownership of such Common Stock as a result of such Purchase Right to such extent)
and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not
result in the Holder exceeding the Maximum Percentage).


 


(b)            Fundamental
Transactions. The Company shall not enter into or be party to a Fundamental Transaction unless the Successor Entity assumes in writing
all of the obligations of the Company under this Warrant and the other Transaction Documents related to this Warrant in accordance with
the provisions of this Section 4(b) pursuant to written agreements in form and substance reasonably satisfactory to the Holder,
including agreements confirming the obligations of the Successor Entity as set forth in this paragraph (b) and (c) and elsewhere
in this Warrant and an obligation to deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant, including, without limitation, which is exercisable
for a corresponding number of shares of capital stock equivalent to the Common Stock acquirable and receivable upon exercise of this Warrant
(without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price
which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Common Stock
pursuant to such Fundamental Transaction and the value of such shares of capital stock, such adjustments to the number of shares of capital
stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation
of such Fundamental Transaction). Notwithstanding the foregoing, at the election of the Holder upon exercise of this Warrant following
a Fundamental Transaction, the Successor Entity shall deliver to the Holder, in lieu of the Common Stock (or other securities, cash, assets
or other property (except such items still issuable under Sections 3 and 4(a) above, which shall continue to be receivable thereafter))
issuable upon the exercise of this Warrant prior to the applicable Fundamental Transaction, such shares of common stock (or its equivalent)
of the Successor Entity (including its Parent Entity), or other securities, cash, assets or other property, which the Holder would have
been entitled to receive upon the happening of the applicable Fundamental Transaction had this Warrant been exercised immediately prior
to the applicable Fundamental Transaction; provided, however, that such amount of reserved shares of Common
Stock shall be limited by the Maximum Percentage of Common Stock as set forth in Section 1(f).


 






    	 	A-10	 



     


    

 


(c)            Black
Scholes Value – FT. Notwithstanding the foregoing and the provisions of Section 4(b) above, at the request of the
Holder delivered at any time commencing on the earliest to occur of (i) the public disclosure of any Fundamental Transaction, (ii) the
consummation of any Fundamental Transaction and (iii) the Holder first becoming aware of any Fundamental Transaction through the
date that is ninety (90) days after the public disclosure of the consummation of such Fundamental Transaction, the Company or the Successor
Entity, at the election of the Holder, shall purchase this Warrant from the Holder on the date of the consummation of such Fundamental
Transaction by paying to the Holder cash in an amount equal to the Black Scholes Value – FT.


 


(d)            Application.
The provisions of this Section 4 shall apply similarly and equally to successive Fundamental Transactions and shall be applied as
if this Warrant (and any such subsequent warrants issued hereunder) were fully exercisable and without regard to any limitations on the
exercise of this Warrant (provided that the Holder shall continue to be entitled to the benefit of the Maximum Percentage,
applied however with respect to shares of capital stock registered under the 1934 Act and thereafter receivable upon exercise of this
Warrant (or any such other warrant)).


 


5.            NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation, bylaws or through
any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, and will at all times
in good faith carry out all the provisions of this Warrant and take all action as may be required to protect the rights of the Holder.
Without limiting the generality of the foregoing, the Company (i) shall not increase the par value of any Common Stock receivable
upon the exercise of this Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon the exercise
of this Warrant, and (iii) shall, so long as any of the SPA Warrants are outstanding, take all action necessary to reserve and keep
available out of its authorized and unissued shares of Common Stock, solely for the purpose of effecting the exercise of the SPA Warrants,
the maximum number of shares of Common Stock as shall from time to time be necessary to effect the exercise of the SPA Warrants then outstanding;
provided, however, that such amount of reserved Common Stock shall be limited by the Maximum Percentage of
Common Stock as set forth in Section 1(f).


 


6.            WARRANT
HOLDER NOT DEEMED A SHAREHOLDER. Except as otherwise specifically provided herein, the Holder, solely in its capacity as a holder
of this Warrant, shall not be entitled to vote or receive dividends or be deemed the holder of share capital of the Company for any purpose,
nor shall anything contained in this Warrant be construed to confer upon the Holder, solely in its capacity as the Holder of this Warrant,
any of the rights of a shareholder of the Company or any right to vote, give or withhold consent to any corporate action (whether any
reorganization, issue of stock, reclassification of stock, consolidation, merger, conveyance or otherwise), receive notice of meetings,
receive dividends or subscription rights, or otherwise, prior to the issuance to the Holder of the Warrant Shares which it is then entitled
to receive upon the due exercise of this Warrant. In addition, nothing contained in this Warrant shall be construed as imposing any liabilities
on the Holder to purchase any securities (upon exercise of this Warrant or otherwise) or as a shareholder of the Company, whether such
liabilities are asserted by the Company or by creditors of the Company. Notwithstanding this Section 6, the Company shall provide
the Holder with copies of the same notices and other information given to the shareholders of the Company generally, contemporaneously
with the giving thereof to the shareholders.


 






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7.            REISSUANCE
OF WARRANTS.


 


(a)            Transfer
of Warrant. If this Warrant is to be transferred, the Holder shall surrender this Warrant to the Company, whereupon the Company will
forthwith issue and deliver upon the order of the Holder a new Warrant (in accordance with Section 7(d)), registered as the Holder
may request, representing the right to purchase the number of Warrant Shares being transferred by the Holder and, if less than the total
number of Warrant Shares then underlying this Warrant is being transferred, a new Warrant (in accordance with Section 7(d)) to the
Holder representing the right to purchase the number of Warrant Shares not being transferred. If, at the time of the surrender of this
Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not be either (i) registered pursuant
to an effective registration statement under the Securities Act and under applicable state securities or blue sky laws or (ii) eligible
for resale without volume or manner-of-sale restrictions or current public information requirements pursuant to Rule 144, the Company
may require, as a condition of allowing such transfer, that the Holder or transferee of this Warrant, as the case may be, provide to the
Company an opinion of counsel selected by the Holder and reasonably acceptable to the Company, the form and substance of which opinion
shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred securities
under the Securities Act.


 


(b)            Lost,
Stolen or Mutilated Warrant. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction
or mutilation of this Warrant (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form and, in the case of mutilation, upon surrender and cancellation of this Warrant, the Company shall execute and deliver to the Holder
a new Warrant (in accordance with Section 7(d)) representing the right to purchase the Warrant Shares then underlying this Warrant.


 


(c)            Exchangeable
for Multiple Warrants. This Warrant is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company,
for a new Warrant or Warrants (in accordance with Section 7(d)) representing in the aggregate the right to purchase the number of
Warrant Shares then underlying this Warrant, and each such new Warrant will represent the right to purchase such portion of such Warrant
Shares as is designated by the Holder at the time of such surrender; provided, however, no warrants for fractional
share of Common Stock shall be given.


 






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(d)            Issuance
of New Warrants. Whenever the Company is required to issue a new Warrant pursuant to the terms of this Warrant, such new Warrant (i) shall
be of like tenor with this Warrant, (ii) shall represent, as indicated on the face of such new Warrant, the right to purchase the
Warrant Shares then underlying this Warrant (or in the case of a new Warrant being issued pursuant to Section 7(a) or Section 7(c),
the Warrant Shares designated by the Holder which, when added to the number of shares of Common Stock underlying the other new Warrants
issued in connection with such issuance, does not exceed the number of Warrant Shares then underlying this Warrant), (iii) shall
have an issuance date, as indicated on the face of such new Warrant which is the same as the Issuance Date, and (iv) shall have the
same rights and conditions as this Warrant.


 


8.            NOTICES.
Whenever notice is required to be given under this Warrant, unless otherwise provided herein, such notice shall be given in accordance
with Section 10(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of
all actions taken pursuant to this Warrant, including in reasonable detail a description of such action and the reason therefor. Without
limiting the generality of the foregoing, the Company will give written notice to the Holder (i) as soon as practicable upon each
adjustment of the Exercise Price and the number of Warrant Shares, setting forth in reasonable detail, and certifying, the calculation
of such adjustment(s) and (ii) at least fifteen (15) days prior to the date on which the Company closes its books or takes a
record (A) with respect to any dividend or distribution upon the Common Stock, (B) with respect to any grants, issuances or
sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities, indebtedness, or other property pro rata
to holders of Common Stock or (C) for determining rights to vote with respect to any Fundamental Transaction, dissolution or liquidation,
provided in each case that such information (to the extent it constitutes, or contains, material, non-public information regarding the
Company shall be made known to the public prior to or in conjunction with such notice being provided to the Holder and (iii) at least
ten (10) Trading Days prior to the consummation of any Fundamental Transaction. It is expressly understood and agreed that the time
of execution specified by the Holder in each Exercise Notice shall be definitive and may not be disputed or challenged by the Company.


 


9.            AMENDMENT
AND WAIVER. Except as otherwise provided herein, the provisions of this Warrant (other than Section 1(f)) may be amended and
the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company
has obtained the written consent of the Holder. The Holder shall be entitled, at its option, to the benefit of any amendment of any other
similar warrant issued under the Securities Purchase Agreement. No waiver shall be effective unless it is in writing and signed by an
authorized representative of the waiving party.


 


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


 






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11.           GOVERNING
LAW. This Warrant shall be governed by and construed and enforced in accordance with, and all questions concerning the construction,
validity, interpretation and performance of this Warrant shall be governed by, the internal laws of the State of New York, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that
would cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits
to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding
is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing
contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company
in any other jurisdiction to collect on the Company’s obligations to the Holder or to enforce a judgment or other court ruling in
favor of the Holder. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR
THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS WARRANT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


12.            CONSTRUCTION;
HEADINGS. This Warrant shall be deemed to be jointly drafted by the Company and the Holder and shall not be construed against any
Person as the drafter hereof. The headings of this Warrant are for convenience of reference and shall not form part of, or affect the
interpretation of, this Warrant. Terms used in this Warrant but defined in the other Transaction Documents shall have the meanings ascribed
to such terms on the Closing Date (as defined in the Securities Purchase Agreement) in such other Transaction Documents unless otherwise
consented to in writing by the Holder.


 


13.            DISPUTE
RESOLUTION. In the case of a dispute as to the determination of the Exercise Price, the Closing Sale Price, the Closing Bid Price,
the Bid Price or fair market value or the arithmetic calculation of the Warrant Shares (as the case may be), the Company or the Holder
(as the case may be) shall submit the disputed determinations or arithmetic calculations (as the case may be) via facsimile (i) within
two (2) Business Days after receipt of the applicable notice giving rise to such dispute to the Company or the Holder (as the case
may be) or (ii) if no notice gave rise to such dispute, at any time after the Holder or the Company (as the case may be) learned
of the circumstances giving rise to such dispute. If the Holder and the Company are unable to agree upon such determination or calculation
(as the case may be) of the Exercise Price, the Closing Sale Price, the Closing Bid Price, the Bid Price or fair market value or the number
of Warrant Shares (as the case may be) within three (3) Business Days of such disputed determination or arithmetic calculation being
submitted to the Company or the Holder (as the case may be), then the Company shall, within two (2) Business Days submit via facsimile
(a) the disputed arithmetic calculation of the Warrant Shares, the disputed determination of the Exercise Price, the Closing Sale
Price, the Closing Bid Price, the Bid Price or fair market value (as the case may be) to an independent, reputable investment bank selected
by the Holder, with the consent of the Company (which may not be unreasonably withheld, conditioned or delayed), or (b) if acceptable
to the Holder, the disputed arithmetic calculation of the Warrant Shares to the Company’s independent, outside accountant. The Company
shall cause at its expense the investment bank or the accountant (as the case may be) to perform the determinations or calculations (as
the case may be) and notify the Company and the Holder of the results no later than ten (10) Business Days from the time it receives
such disputed determinations or calculations (as the case may be). Such investment bank’s or accountant’s determination or
calculation (as the case may be) shall be binding upon all parties absent demonstrable error. The fees and expenses of such investment
bank or accountant shall be borne by the parties in the same proportion as the respective amounts by which the investment bank’s
or accountant’s determination differs from such party’s calculation.


 






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14.            REMEDIES,
CHARACTERIZATION, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Warrant shall be cumulative and
in addition to all other remedies available under this Warrant and the other Transaction Documents, at law or in equity (including a decree
of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages
for any failure by the Company to comply with the terms of this Warrant. The Company covenants to the Holder that there shall be no characterization
concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments,
exercises and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly
provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate.
The Company therefore agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled,
in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic loss and
without any bond or other security being required. The Company shall provide all information and documentation to the Holder that is requested
by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Warrant (including,
without limitation, compliance with Section 2 hereof). The issuance of shares and certificates for shares as contemplated hereby
upon the exercise of this Warrant shall be made without charge to the Holder or such shares for any issuance tax or other costs in respect
thereof, provided that the Company shall not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of any certificate in a name other than the Holder or its agent on its behalf.


 


15.            TRANSFER.
This Warrant may be offered for sale, sold, transferred or assigned without the consent of the Company.


 


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


 


(a)            “Bid
Price” means, for any security as of the particular time of determination, the bid price of such security on the principal securities
exchange or trading market where such security is listed or traded as reported by Bloomberg as of such time of determination, or if the
foregoing does not apply, the bid price of such security in the over-the-counter market on the electronic bulletin board for such security
as reported by Bloomberg as of such time of determination, or, if no bid price is reported for such security by Bloomberg as of such time
of determination, the average of the bid prices of all of the market makers for such security as reported in the “pink sheets”
by OTC Markets Group Inc. (formerly Pink Sheets LLC) as of such time of determination. If the Bid Price cannot be calculated for a security
as of the particular time of determination on any of the foregoing bases, the Bid Price of such security as of such time of determination
shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree
upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures in Section 13.
All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction
during such period.


 






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(b)            “Black
Scholes Value” means the Black Scholes value of an option for one share of Common Stock at the date of the applicable Cashless
Exercise, as such Black Scholes value is determined, calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share equal to the Exercise Price, as adjusted, (ii) a risk-free
interest rate corresponding to the U.S. Treasury rate, (iii) a strike price equal to the Exercise Price in effect at the time of
the applicable Cashless Exercise, (iv) an expected volatility equal to 135%, and (v) a deemed remaining term of the Warrant
of five (5) years (regardless of the actual remaining term of the Warrant).


 


(c)            “Black
Scholes Value – Consideration” means the value of the applicable Option or Convertible Security (as the case may be) as
of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on
Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately
preceding the public announcement of the execution of definitive documents with respect to the issuance of such Option or Convertible
Security (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining
term of such Option or Convertible Security (as the case may be) as of the date of issuance of such Option or Convertible Security (as
the case may be) and (iii) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function
on Bloomberg (determined utilizing a 3 65 day annualization factor) as of the Trading Day immediately following the date of issuance of
such Option or Convertible Security (as the case may be).


 


(d)            “Black
Scholes Value – FT” means the value of the unexercised portion of this Warrant remaining on the date of the Holder’s
request pursuant to Section 4(c), which value is calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share equal to the greater of (A) the highest Closing Sale Price
of the Common Stock during the period beginning on the Trading Day immediately preceding the earliest to occur of (1) the public
disclosure of the applicable Fundamental Transaction, (2) the consummation of the applicable Fundamental Transaction and (3) the
date on which the Holder first became aware of the applicable Fundamental Transaction and ending on the Trading Day of the Holder’s
request pursuant to Section 4(c) and (B) the sum of the price per share being offered in cash in the applicable Fundamental
Transaction (if any) plus the value of the non-cash consideration being offered in the applicable Fundamental Transaction (if any), (ii) a
strike price equal to the Exercise Price in effect on the date of the Holder’s request pursuant to Section 4(c), (iii) a
risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the greater of (A) the remaining term of this
Warrant as of the date of the Holder’s request pursuant to Section 4(c) and (B) the remaining term of this Warrant
as of the date of consummation of the applicable Fundamental Transaction or as of the date of the Holder’s request pursuant to Section 4(c) if
such request is prior to the date of the consummation of the applicable Fundamental Transaction and (iv) an expected volatility equal
to the greater of 135% and the 100 day volatility obtained from the HVT function on Bloomberg (determined utilizing a 365 day annualization
factor) as of the Trading Day immediately following the earliest to occur of (A) the public disclosure of the applicable Fundamental
Transaction, (B) the consummation of the applicable Fundamental Transaction and (C) the date on which the Holder first became
aware of the applicable Fundamental Transaction.


 






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


 


(f)            “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or
required by law to remain closed.


 


(g)            “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
the last closing trade price, respectively, for such security on the principal securities exchange or trading market where such security
is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the average of the bid prices, or the ask prices, respectively,
of all of the market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets
LLC). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market value
as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of
such security, then such dispute shall be resolved in accordance with the procedures in Section 13. All such determinations shall
be appropriately adjusted for any stock dividend, stock split, stock combination or other similar transaction during such period.


 


(h)            “Common
Stock” means the common stock, par value $0.001 per share, of the Company and any other shares of stock issued or issuable with
respect thereto (whether by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in
connection with a combination of shares, distribution, recapitalization, merger, consolidation, other corporate reorganization or other
similar event with respect to the Common Stock).


 


(i)            “Convertible
Securities” means any capital stock or other security of the Company that is at any time and under any circumstances directly
or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital
stock or other security of the Company (including, without limitation, Common Stock)..


 


(j)            “Eligible
Market” means the New York Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq
Capital Market.


 






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(k)           “Expiration
Date” means the date that is [●], 2027 or, if such date falls on a day other than a Business Day or on which trading does
not take place on the principal securities exchange or trading market where the Common Stock is listed (a “Holiday”),
the next date that is not a Holiday.


 


(l)            “Fundamental
Transaction” means that (i) the Company shall, directly or indirectly, in one or more related transactions, (1) consolidate
or merge with or into (whether or not the Company is the surviving entity) any other Person unless the shareholders of the Company immediately
prior to such consolidation or merger continue to hold more than 50% of the outstanding shares of Voting Stock after such consolidation
or merger, or (2) sell, lease, license, assign, transfer, convey or otherwise dispose of all or substantially all of its properties
or assets to any other Person, in connection with which the Company is dissolved, or (3) allow any other Person to make a purchase,
tender or exchange offer that is accepted by the holders of more than 50% of the outstanding shares of Voting Stock of the Company (not
including any shares of Voting Stock of the Company held by the Person or Persons making or party to, or associated or affiliated with
the Persons making or party to, such purchase, tender or exchange offer), or (4) consummate a stock or share purchase agreement or
other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
any other Person whereby such other Person acquires more than 50% of the outstanding shares of Voting Stock of the Company (not including
any shares of Voting Stock of the Company held by the other Person or other Persons making or party to, or associated or affiliated with
the other Persons making or party to, such stock or share purchase agreement or other business combination), or (ii) any “person”
or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the 1934 Act and the rules and
regulations promulgated thereunder) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the 1934
Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Voting Stock of the
Company.


 


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


 


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


 


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


 


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


 






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(q)           “Trading
Day” means, as applicable, (x) with respect to all price determinations relating to the Common Stock, any day on which
the Common Stock is traded on the principal securities exchange or securities market on which the Common Stock is then traded, provided
that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for
less than 4.5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market
(or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour
ending at 4:00:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with
respect to all determinations other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange
(or any successor thereto) is open for trading of securities.


 


(r)            “Voting
Stock” of a Person means capital stock of such Person of the class or classes pursuant to which the holders thereof have the
general voting power to elect, or the general power to appoint, at least a majority of the board of directors, managers or trustees of
such Person (irrespective of whether or not at the time capital stock of any other class or classes shall have or might have voting power
by reason of the happening of any contingency).


 


(s)            “VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the principal securities exchange
or securities market on which such security is then traded during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00
p.m., New York time, as reported by Bloomberg through its “Volume at Price” function or, if the foregoing does not apply,
the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security
during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if
no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the three highest closing
bid prices and the three lowest closing ask prices of all of the market makers for such security as reported in the “pink sheets”
by OTC Markets Group Inc. (formerly Pink Sheets LLC). If VWAP cannot be calculated for such security on such date on any of the foregoing
bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If
the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance
with the procedures in Section 13. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock
combination or other similar transaction during such period.


 


[signature page follows]


 






    	 	A-19	 



     


    

 


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


 


	 	MULLEN AUTOMOTIVE INC.
	 	 
	 	By:	                   
	 	Name: David Michery
	 	Title: CEO




 






     

     


    

 


EXHIBIT A


 


EXERCISE NOTICE


 


TO BE EXECUTED BY THE REGISTERED HOLDER TO EXERCISE
THIS

WARRANT TO PURCHASE COMMON STOCK


 


MULLEN AUTOMOTIVE INC.


 


The undersigned holder hereby exercises the right to purchase _______________
shares of the Common Stock (“Warrant Shares”) of Mullen Automotive Inc., a Delaware corporation (the “Company”),
evidenced by Warrant to Purchase Common Stock No. _______ (the “Warrant”). Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.


 


1.            Form of
Exercise Price. The Holder intends that payment of the Exercise Price shall be made as:


 


	 	_______________	a “Cash Exercise” with respect to _____________

Warrant Shares; and/or
	 	_______________	a “Cashless Exercise” with respect to _______________

Warrant Shares.


 


In the event that the Holder has elected a Cashless Exercise with respect
to some or all of the Warrant Shares, the Holder represents and warrants that ___________ Common Stock are to be delivered pursuant to
such Cashless Exercise, as further specified in Annex A to this Exercise Notice.


 


2.            Payment
of Exercise Price. In the event that the Holder has elected a Cash Exercise with respect to some or all of the Warrant Shares, the
Holder shall pay the Aggregate Exercise Price in the sum of $_______________ to the Company in accordance with the terms of the Warrant.


 


3.            Delivery
of Warrant Shares and Net Number of Common Stock. The Company shall deliver to Holder, or its designee or agent as specified below,
____________ Common Stock in respect of the exercise contemplated hereby. Delivery shall be made to Holder, or for its benefit, to the
following address:


 


_______________________________


 


_______________________________


 


_______________________________


 


_______________________________


 


Date:     _____________________
__, ______


 


________________________________

Name of Registered Holder


 






     

     


    

 


	By:	 	 
	 	Name:	 
	 	Title:	 






 


Account Number:___________________________________________________

(if electronic book entry transfer) Transaction Code Number:


 


Transaction Code Number:____________________________________________

(if electronic book entry transfer)


 






     

     


    

 


ANNEX A TO EXERCISE NOTICE


 


CASHLESS EXERCISE EXCHANGE CALCULATION


 


TO BE FILLED IN BY THE REGISTERED HOLDER TO
EXCHANGE THE

WARRANT TO PURCHASE COMMON STOCK IN A CASHLESS EXERCISE

PURSUANT TO SECTION 1(d) OF THE WARRANT


 


Capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Warrant.


 


[
] Net Number = (A x B)/C =     shares of Common Stock


 


For purposes of the foregoing formula:


 


A= the total number of shares with respect
to which the Warrant is then being exercised = _____________________.


B= Black Scholes Value (as defined in
Section 16 of the Warrant) = _____________________.


C= the Closing Bid Price of the Common
Stock as of two (2) Trading Days prior to the time of such exercise (as such Closing Bid Price is defined in Section 16 of the
Warrant) = _____________________.


 


Date:     _____________________
__, ______


 


________________________________

Name of Registered Holder


 


	By:	 	 
	 	Name:	 
	 	Title:	 


 






     

     


    

 


EXHIBIT B


 


ACKNOWLEDGMENT


 


The Company hereby acknowledges this Exercise Notice and hereby directs
_____________ to issue the above indicated number of shares of Common Stock in accordance with the Transfer Agent Instructions dated ___________,
20__, from the Company and acknowledged and agreed to by __________________.


 


	 	MULLEN AUTOMOTIVE INC.
	 	 
	 	By:	                   
	 	Name: 
	 	Title: 


 






     

     


    

 


EXHIBIT B


  


FORM OF PURCHASE NOTICE


 


TO: BUYERS LISTED BELOW


 


DATE: ____________________


 


We refer to the Securities Purchase Agreement, dated June 7, 2022
(the "Agreement"), entered into by and between Mullen Automotive Inc. and you. Capitalized terms defined in the Agreement
shall, unless otherwise defined herein, have the same meaning when used herein.


 


We hereby give you notice that we require you to purchase the Commitment
Amount at the Purchase Price of $________ pursuant to the Agreement as set forth below:


 


	Name of Buyer	 	Shares of Series D 
 Preferred Stock1	 	 	Warrants to purchase
 Common Stock2	 	 	Purchase
 Price	 
	Esousa Holdings, LLC	 	 		 	 	 		 	 	$	102,000,000.00	 
	Acuitas Capital, LLC	 	 	 	 	 	 	 	 	 	$	100,000,000.00	 
	TDR Capital Pty Limited	 	 	 	 	 	 	 	 	 	$	50,000,000.00	 
	BitNile Holdings, Inc.	 	 	 	 	 	 	 	 	 	$	15,000,000.00	 
	Jess Mogul	 	 	 	 	 	 	 	 	 	$	5,000,000.00	 
	Jim Fallon	 	 	 	 	 	 	 	 	 	$	2,500,000.00	 
	Michael Friedlander	 	 	 	 	 	 	 	 	 	$	500,000.00	 
	TOTAL	 	 	 	 	 	 	 	 	 	$	275,000,000.00	 



 


1. The terms of the Series D Preferred Stock
are set forth in the Certificate of Designation.


 


2. For no additional consideration,
for every Purchase Share purchased by Buyer under the terms of the Agreement Buyer shall receive Warrants exercisable for 110% of shares
of Common Stock at an exercise price of $______ per share. 


 


The Warrants may be exercised, in whole
or in part and, in lieu of making the cash payment otherwise contemplated to be made to the Company upon such exercise, the Buyer may
elect to redeem the Warrants pursuant to the following formula:


 


Net Number = (A x B)/C


 


For purposes of the foregoing formula:


 


A= the total number of shares with respect to which the applicable Warrant is then being exercised.


 


B= Black Scholes Value (as defined in the applicable Warrant).


 


C= the Closing Bid Price of the Common Stock as of two (2) Trading Days prior to the time of such exercise (as such Closing Bid Price
is defined in the applicable Warrant), but in any event not less than $0.01 (as may be adjusted for stock dividends, subdivisions, or
combinations in the manner described in the Warrant).


 


We certify that, as of the date hereof, the conditions set forth in
Section 7 of the Agreement are satisfied.


 


	MULLEN AUTOMOTIVE INC.	 
	 	 
	By:	                   	 
	Name: 	 
	Title: 	 


 






     

     


    

 


EXHIBIT C


 


FORM OF CERTIFICATE OF DESIGNATION


 


Attached


 






     

     


    

 


MULLEN
AUTOMOTIVE inc.


 


CERTIFICATE OF DESIGNATION OF PREFERENCES,


RIGHTS AND LIMITATIONS


OF


SERIES
D CONVERTIBLE PREFERRED STOCK


 


PURSUANT
TO SECTION 151 OF THE


delaware
GENERAL CORPORATION LAW


 


The undersigned, David Michery,
hereby certifies that:


 


1.            He
is the Chief Executive Officer and Secretary of Mullen Automotive Inc., a Delaware corporation (the "Corporation").


 


2.            The
Corporation is authorized to issue [500,000,000] shares of preferred stock of which [15,358] shares of Series A preferred stock and
[6,153,000] shares of Series C preferred stock are currently outstanding. No shares of Series B preferred stock are outstanding.


 


3.            The
following resolutions were duly adopted by the board of directors of the Corporation (the "Board of Directors") as required
by Section 151(g) of the Delaware General Corporation Law:


 


WHEREAS, the certificate of
incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of [500,000,000] shares,
$0.001 par value per share, issuable from time to time in one or more series;


 


WHEREAS, the Board of Directors
is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation
preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof,
of any of them; and


 


WHEREAS, it is the desire
of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating
to a new series of the preferred stock, which shall consist of up to [●] shares of the preferred stock which the Corporation has
the authority to issue.


 


NOW, THEREFORE, BE IT RESOLVED,
that the Board of Directors does hereby provide for the issuance of a new series of preferred stock for cash or exchange of other securities,
rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of
preferred stock as follows:


 


TERMS OF PREFERRED STOCK


 


Section 1.
Designation, Amount and Par Value. The series of preferred stock shall be designated as Series D Convertible Preferred
Stock (the "Series D Preferred Stock") and the number of shares so designated shall consist of [●] shares,
having a par value of $0.001 per share, which shall not be subject to increase without the written consent of all of the holders of the
Series D Preferred Stock (each, a "Holder" and collectively, the "Holders").


 






    	 	C-1	 



     


    

 


Section 2.
Definitions. For the purposes hereof, the following terms shall have the following meanings:


 


"Affiliate" means any
Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a
Person, as such terms are used in and construed under Rule 405 of the Securities Act.


 


"Beneficial Ownership Limitation"
shall have the meaning set forth in Section 6(d).


 


"Business Day" means
any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions
in the State of New York are authorized or required by law or other governmental action to close.


 


"Certificate of Incorporation"
means the Second Amended and Restated Certificate of Incorporation of the Corporation filed with the Secretary of State of the State of
Delaware on November 5, 2021, as the same may thereafter be amended from time to time.


 


"Closing" means the closing
of the purchase and sale of the Securities pursuant to Section 2.1 of the Purchase Agreement.


 


"Commission" means the
United States Securities and Exchange Commission.


 


"Common Stock" means
the Corporation's common stock, par value $0.001 per share, and stock of any other class of securities into which such securities may
hereafter be reclassified or changed.


 


"Exchange Act" means
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


"GAAP" means United States
generally accepted accounting principles.


 


"Holder" shall have the
meaning given such term in Section 1.


 


"Liquidation" shall have
the meaning set forth in Section 5.


 


"Person" means an individual
or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock
company, government (or an agency or subdivision thereof) or other entity of any kind.


 






    	 	C-2	 



     


    

 


“Purchase Notice Date”
means the Trading Day on which a holder of Series D Preferred Stock receives a purchase notice pursuant to the terms of that certain
Securities Purchase Agreement dated as of June 7, 2022.


 


"Securities" means the
Series D Preferred Stock and the Underlying Shares.


 


"Securities Act" means
the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.


 


"Series D Conversion Price"
shall have the meaning set forth in Section 6(a).


 


"Series D Original Issue
Price" shall have the meaning set forth in Section 4(a).


 


"Trading Day" means,
as applicable, (x) with respect to all price determinations relating to the Common Stock, any day on which the Common Stock is traded
on the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading
Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours
or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange
or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00:00
p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the holder or (y) with respect to all
determinations other than price determinations relating to the Common Stock, any day on which The New York Stock Exchange (or any successor
thereto) is open for trading of securities.


 


"Trading Market" means
any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE
American the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any
successors to any of the foregoing).


 


"Transfer Agent" means
Continental Stock Transfer, the current transfer agent of the Corporation, with a mailing address of 1 State Street, 30th Floor, New York,
NY 10004-1561, email cstmail@continentalstock.com, and any successor transfer agent of the Corporation.


 


"Underlying Shares" means
the shares of Common Stock issued and issuable upon conversion of the Series D Preferred Stock.


 






    	 	C-3	 



     


    

 


Section 3.
Dividends.


 


(a)            From
and after the date of issuance of any share of the Series D Preferred Stock, a cumulative dividend shall accrue, whether or not declared
by the board of directors of this Corporation and whether or not there are funds legally available for the payment of dividends, on a
daily basis in arrears at the rate of 15.0% per annum on the sum of the Series D Original Issue Price (as defined below) plus all
unpaid accrued and accumulated dividends thereon. All accrued dividends on any share of the Series D Preferred Stock shall be paid
in cash only when, as and if declared by the Board out of funds legally available therefor or upon a liquidation or redemption of the
Series D Preferred Stock in accordance with the provisions of this Certificate of Designation (a); provided, that to
the extent not paid on the fifth (5th) calendar day after the last day of each month (each such date, a "Series D Dividend
Payment Date"), all accrued dividends on any share of the Series D Preferred Stock shall accumulate and compound on the
applicable Series D Dividend Payment Date whether or not declared by the board of directors of this Corporation and shall remain
accumulated, compounding dividends until paid pursuant hereto or converted pursuant to this Certificate of Designation. All accrued and
accumulated dividends on the shares of the Series D Preferred Stock as accrued pursuant to this Certificate of Designation (a) shall
be prior and in preference to any dividend on any other series of preferred stock or the Common Stock and (b) shall be fully declared
and paid before any dividends are declared and paid, or any other distributions or redemptions are made, on any other series of preferred
stock or the Common Stock, other than to declare or pay any dividend or distribution payable on the Common Stock in shares of Common Stock.
This Corporation may elect to pay dividends for any month with a paid-in-kind election ("PIK") if (i) the issuance
of the shares of Common Stock issuable further to the PIK has been registered pursuant to the Securities Act and such registration remains
effective, (ii) this Corporation is then in compliance with all listing requirements of the Nasdaq Capital Market and (iii) the
average daily trading dollar volume of this Corporation’s Common Stock for ten (10) trading days in any period of twenty (20)
consecutive trading days on the Nasdaq Capital Market is greater than Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000).


 


(b)            Any
dividends or distributions, other than dividends or distributions accruing or paid on shares of the Series D Preferred Stock pursuant
to this Certificate of Designation, shall be distributed among all holders of Common Stock and preferred stock in proportion to the number
of shares of Common Stock that would be held by each such holder if all shares of preferred stock were converted to Common Stock at the
then effective conversion rate without regard to any limitations on the conversion of the preferred stock contained in the Certificate
of Incorporation.


 


Section 4. Liquidation
Preference.


 


(a)            In
the event of any Liquidation Event (as defined below), either voluntary or involuntary, the holders of Series D Preferred Stock shall
be entitled to receive, prior and in preference to any distribution of the proceeds of such Liquidation Event (the "Proceeds")
to the holders of the other series of preferred stock or the Common Stock by reason of their ownership thereof, an amount per share equal
to the Series D Original Price (as defined below), plus declared but unpaid dividends on such share. If, upon the occurrence of such
event, the Proceeds thus distributed among the holders of the Series D Preferred Stock shall be insufficient to permit the payment
to such holders of the full aforesaid preferential amounts, then the entire Proceeds legally available for distribution shall be distributed
ratably among the holders of the Series D Preferred Stock in proportion to the full preferential amount that each such holder is
otherwise entitled to receive under this subsection (a). For purposes of this Certificate of Designation, "Series D Original
Issue Price" shall mean per share for each share of the Series D Preferred Stock the lower of (i) $1.27 or (ii) the
closing price on the Trading Day immediately preceding the Purchase Notice Date (as adjusted for any stock splits, stock dividends, combinations,
recapitalizations or the like with respect to the Series D Preferred Stock).


 






    	 	C-4	 



     


    

  


Upon the completion
of the distribution required by this subsection (a), any remaining Proceeds available for distribution to stockholders shall be distributed
among the holders of Common Stock pro rata, based on the number of shares of Common Stock held by each (assuming full conversion of all
preferred stock).


 


(b)            Notwithstanding
the above, for purposes of determining the amount each holder of shares of Series D Preferred Stock is entitled to receive with respect
to a Liquidation Event, each such holder of shares of such Series D Preferred Stock shall be deemed to have converted (regardless
of whether such holder actually converted) such holder's shares of Common Stock immediately prior to the Liquidation Event (without regard
to any limitations on the conversion of the Series D Preferred Stock contained in the Certificate of Incorporation or this Certificate
of Designation) if, as a result of an actual conversion, such holder would receive, in the aggregate, an amount greater than the amount
that would be distributed to such holder if such holder did not convert such series of Series D Preferred Stock into shares of Common
Stock. If any such holder shall be deemed to have converted shares of Series D Preferred Stock into Common Stock pursuant to this
paragraph, then such holder shall not be entitled to receive any distribution that would otherwise be made to holders of Series D
Preferred Stock that have not converted (or have not been deemed to have converted) into shares of Common Stock.


 


(c)            (i) For
purposes of this Section 4, a "Liquidation Event" shall include (A) the closing of the sale, transfer or other
disposition of all or substantially all of this Corporation's assets, (B) the consummation of the merger or consolidation of this
Corporation with or into another entity (except a merger or consolidation in which the holders of capital stock of this Corporation immediately
prior to such merger or consolidation continue to hold at least 50% of the voting power of the capital stock of this Corporation or the
surviving or acquiring entity), (C) the closing of the transfer (whether by merger, consolidation or otherwise), in one transaction
or a series of related transactions, to a person or group of affiliated persons (other than an underwriter of this Corporation's Securities),
of this Corporation's Securities if, after such closing, such person or group of affiliated persons would hold 50% or more of the outstanding
voting stock of this Corporation or (D) a liquidation, dissolution or winding up of this Corporation; provided, however,
that a transaction shall not constitute a Liquidation Event if its sole purpose is to change the state of this Corporation's incorporation
or to create a holding company that will be owned in substantially the same proportions by the persons who held this Corporation's Securities
immediately prior to such transaction. Notwithstanding the prior sentence, the sale of shares of Series D Preferred Stock in a financing
transaction shall not be deemed a "Liquidation Event." The treatment of any particular transaction or series of related transactions
as a Liquidation Event may be waived by the vote or written consent of the holders of a majority of each outstanding class or series of
preferred stock.


 






    	 	C-5	 



     


    

 


(ii) In any Liquidation
Event, if the consideration received by this Corporation is other than cash, its value will be deemed its fair market value as determined
in good faith by the Board of Directors of this Corporation. Any securities shall be valued as follows:


 


(A)          Securities
not subject to investment letter or other similar restrictions on free marketability covered by (B) below:


 


(1)            If
traded on a securities exchange or through the Nasdaq, the value shall be deemed to be the average of the closing prices of the securities
on such exchange or system over the twenty (20) trading day period ending three (3) trading days prior to the closing;


 


(2)            If
actively traded over-the-counter, the value shall be deemed to be the average of the closing bid or sale prices (whichever is applicable)
over the twenty (20) trading day period ending three (3) trading days prior to the closing; and


 


(3)            If
there is no active public market, the value shall be the fair market value thereof, as mutually determined by the Board of Directors of
this Corporation and the holders of at least a majority of the voting power of outstanding Series D Preferred Stock.


 


(B)          The
method of valuation of securities subject to investment letter or other restrictions on free marketability (other than restrictions arising
solely by virtue of a stockholder's status as an affiliate or former affiliate) shall be to make an appropriate discount from the market
value determined as above in (A) (1), (2) or (3) to reflect the approximate fair market value thereof, as mutually determined
by this Corporation and the holders of at least a majority of the voting power of outstanding Series D Preferred Stock.


 


(C)          The
foregoing methods for valuing non-cash consideration to be distributed in connection with a Liquidation Event may be superseded by any
determination of such value set forth in the definitive agreements governing such Liquidation Event.


 


(iii) In the
event the requirements of this Section 4 are not complied with, this Corporation shall forthwith either:


 


(A)          cause
such closing to be postponed until such time as the requirements of this Section 4 have been complied with; or


 


(B)          cancel
such transaction, in which event the rights, preferences and privileges of the holders of the Series D Preferred Stock shall revert
to and be the same as such rights, preferences and privileges existing immediately prior to the date of the first notice referred to in
subsection 4(e)(iv) hereof.


 






    	 	C-6	 



     


    

 


(iv)            This
Corporation shall give each holder of record of Series D Preferred Stock written notice of such impending transaction not later than
twenty (20) days prior to the stockholders' meeting called to approve such transaction, or twenty (20) days prior to the closing of such
transaction, whichever is earlier, and shall also notify such holders in writing of the final approval of such transaction. The first
of such notices shall describe the material terms and conditions of the impending transaction and the provisions of this Section 4,
and this Corporation shall thereafter give such holders prompt notice of any changes. The transaction shall in no event take place sooner
than twenty (20) days after this Corporation has given the first notice provided for herein or sooner than ten (10) days after this
Corporation has given notice of any changes provided for herein; provided, however, that such periods may
be shortened upon the written consent of the holders of Series D Preferred Stock that (i) are entitled to such notice rights
or similar notice rights and (ii) represent at least a majority of the voting power of all then outstanding shares of Series D
Preferred Stock. The holders of the outstanding Series D Preferred Stock can waive the notice requirements described in this subsection
(iv) upon the affirmative vote or written consent of the holders of at least a majority of the shares of Series D Preferred
Stock then outstanding.


 


Section 5.
Redemption. Subject to the conditions and other provisions of this Section 5, this Corporation shall have the right
to elect to redeem, out of funds legally available therefore, all (but not less than all) of the then outstanding shares of the Series D
Preferred Stock in accordance with the following conditions:


 


(a)            at
any time for a price per share equal to the Series D Original Issue Price, plus all unpaid accrued and accumulated dividends on such
share (whether or not declared) (the "Series D Redemption Price"), provided: (A) the Series D
Preferred Stock has been issued and outstanding for a period of at least one (1) year, (B) the issuance of the shares of Common
Stock underlying the Series D Preferred Stock has been registered pursuant to the Securities Act and such registration remains effective,
and (C) the trading price for this Corporation's Common Stock is less than the Series D Conversion Price for twenty (20) trading
days in any period of thirty (30) consecutive trading days on the Nasdaq Capital Markets; or


 


(b)            in
accordance with the following schedule; provided the issuance of shares of Common Stock underlying the Series D Preferred
Stock has been registered pursuant to the Securities Act and such registration remains effective:


 


	Year 1	No Redemption
	Year 2	Redemption at 120% of the Series D Redemption Price
	Year 3	Redemption at 115% of the Series D Redemption Price
	Year 4	Redemption at 110% of the Series D Redemption Price
	Year 5	Redemption at 105% of the Series D Redemption Price
	Year 6 and thereafter	Redemption at 100% of the Series D Redemption Price


 



    	 	C-7	 



     


    

 


Any such redemption
shall occur not less than fifteen (15) days following receipt by the holders of the Series D Preferred Stock of a written election
notice (the "Series D Election Notice") from this Corporation stating this Corporation's intent to exercise this
election and the date upon which such redemption shall take effect (the "Series D Redemption Date"). Upon receipt
of a Series D Election Notice, all holders of the Series D Preferred Stock shall be deemed to have consented to have all of
their shares of the Series D Preferred Stock redeemed pursuant to this Section 5; provided, that notwithstanding
anything to the contrary contained herein, each holder of shares of Series D Preferred Stock shall have the right to elect prior
to the Series D Redemption Date to give effect to the conversion rights contained in Section 6 instead of giving effect to the
provisions contained in this Section 5 with respect to the shares of Series D Preferred Stock held by such holder.


 


Section 6.
Conversion. The holders of the Series D Preferred Stock shall have conversion rights as follows (the "Conversion
Rights"):


 


(a)            Right
to Convert. Each share of Series D Preferred Stock shall be convertible, at the option of the holder thereof, at any time after
the date of issuance of such share, at the office of this Corporation or any transfer agent for such stock, into such number of fully
paid and nonassessable shares of Common Stock as is determined by dividing the Series D Original Issue Price (plus all unpaid accrued
and accumulated dividends thereon, as applicable, whether or not declared), by the Series D Conversion Price (the "Conversion
Rate"), determined as hereafter provided, in effect on the date the certificate is surrendered for conversion. The initial "Series D
Conversion Price" shall be the Series D Original Issue Price; provided, however, that the Series D
Conversion Price shall be subject to adjustment as set forth in this Section 6. Each share of Series D Preferred Stock shall
be convertible, at the option of the holder thereof, at any time after the date of issuance of such share, at the office of this Corporation
or any transfer agent for such stock, into one (1) fully paid and nonassessable share of Common Stock (as adjusted for any stock
splits, stock dividends, combinations, recapitalizations or the like with respect to the Common Stock).


 


(b)            Automatic
Conversion. Each share of Series D Preferred Stock shall automatically be converted into shares of Common Stock at the applicable
Conversion Rate at the time in effect immediately upon (A) the issuance of shares of Common Stock underlying the Series D Preferred
Stock being registered pursuant to the Securities Act and such registration remaining effective, (B) the trading price for this Corporation's
Common Stock being more than [two] times the Series D Conversion Price for twenty (20) trading days in any period of thirty (30)
consecutive trading days on the Nasdaq Capital Market, and (C) the average daily trading dollar volume of this Corporation's Common
Stock during such twenty (20) trading days is equal to or greater than Twenty Seven Million Five Hundred Thousand Dollars ($27,500,000).


 






    	 	C-8	 



     


    

 


(c)            Mechanics
of Conversion. Before any holder of Series D Preferred Stock shall be entitled to voluntarily convert the same into shares of
Common Stock, he or she shall surrender the certificate or certificates therefor, duly endorsed, at the office of this Corporation or
of any transfer agent for the Series D Preferred Stock, and shall give written notice to this Corporation at its principal corporate
office, of the election to convert the same and shall state therein the name or names in which the certificate or certificates for shares
of Common Stock are to be issued. This Corporation shall, as soon as practicable thereafter, issue and deliver at such office to such
holder of Series D Preferred Stock, or to the nominee or nominees of such holder, a certificate or certificates for the number of
shares of Common Stock to which such holder shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately
prior to the close of business on the date of such surrender of the shares of Series D Preferred Stock to be converted, and the person
or persons entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such shares of Common Stock as of such date. If the conversion is in connection with an underwritten offering of
securities registered pursuant to the Securities Act the conversion may, at the option of any holder tendering Series D Preferred
Stock for conversion, be conditioned upon the closing with the underwriters of the sale of securities pursuant to such offering, in which
event the persons entitled to receive the Common Stock upon conversion of the Series D Preferred Stock shall not be deemed to have
converted such Series D Preferred Stock until immediately prior to the closing of such sale of securities. If the conversion is in
connection with Automatic Conversion provisions of subsection 6(b)(ii) above, such conversion shall be deemed to have been made on
the conversion date described in the stockholder consent approving such conversion, and the persons entitled to receive shares of Common
Stock issuable upon such conversion shall be treated for all purposes as the record holders of such shares of Common Stock as of such
date.


 


(d)            Limitations
on Conversion. Notwithstanding anything to the contrary contained in this Certificate of Designation, the Series D Preferred
Stock shall not be convertible by a holder to the extent (but only to the extent) that the holder or any of its Affiliates would beneficially
own in excess of 9.99% (the "Maximum Percentage") of the Common Stock. To the extent the above limitation applies, the
determination of whether the holder's Series D Preferred Stock shall be convertible (vis-a-vis other convertible securities owned
by the holder or any of its Affiliates) and of which such securities shall be convertible (as among all such securities owned by the holder)
shall, subject to such Maximum Percentage limitation, be determined on the basis of the first submission to the Corporation for conversion.
No prior inability to convert the Series D Preferred Stock pursuant to this paragraph shall have any effect on the applicability
of the provisions of this paragraph with respect to any subsequent determination of convertibility. For the purposes of this paragraph,
beneficial ownership and all determinations and calculations (including, without limitation, with respect to calculations of percentage
ownership) shall be determined in accordance with Section 13(d) of the Securities Exchange Act and the rules and regulations
promulgated thereunder. The provisions of this paragraph shall be implemented in a manner otherwise than in strict conformity with the
terms of this paragraph to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Maximum
Percentage beneficial ownership limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such Maximum Percentage limitation. The limitations contained in this paragraph shall apply to any successor holder of the Series D
Preferred Stock. The holders of Common Stock shall be third party beneficiaries of this paragraph and the Corporation may not amend or
waive this paragraph without the consent of holders of a majority of its Common Stock. For any reason at any time, upon the written or
oral request of the holder, the Corporation shall within one (1) Business Day confirm orally and in writing to the holder the number
of shares of Common Stock then outstanding, including by virtue of any prior conversion of convertible securities into Common Stock, including,
without limitation, pursuant to this Certificate of Designation or securities issued pursuant to this Certificate of Designation. By written
notice to the Corporation, any holder may increase or decrease the Maximum Percentage to any other percentage not in excess of 9.99% specified
in such notice; provided that (i) any such increase will not be effective until the 61st day after such notice is delivered
to the Corporation, and (ii) any such increase or decrease will apply only to such holder sending such notice and not to any other
holder.


 






    	 	C-9	 



     


    

 


(e)            Conversion
Price Adjustments of Series D Preferred Stock for Certain Dilutive Issuances, Splits and Combinations. The Series D Conversion
Price shall be subject to adjustment from time to time as follows:


 


(i)            (A)           If
this Corporation shall issue, on or after the date upon which this Certificate of Designation is accepted for filing by the Secretary
of State of the State of Delaware (the "Filing Date"), any Additional Stock (as defined below) without consideration
or for a consideration per share less than the Series D Conversion Price in effect immediately prior to the issuance of such Additional
Stock, the Series D Conversion Price in effect immediately prior to each such issuance shall forthwith (except as otherwise provided
in this clause (i)) be adjusted to a price determined by multiplying the Series D Conversion Price by a fraction, the numerator of
which shall be (1) the number of shares of Common Stock Outstanding immediately prior to such issuance plus (2) the number
of shares of Common Stock that the aggregate consideration received by this Corporation for such issuance would purchase at the then-existing
Series D Conversion Price; and the denominator of which shall be the number of shares of Common Stock Outstanding immediately prior
to such issuance plus the number of shares of such Additional Stock. For purposes of this subsection 6(e)(i)(A), the term "Common
Stock Outstanding" shall mean and include the following: (1) outstanding Common Stock, (2) Common Stock issuable upon conversion
of outstanding preferred stock (without regard to any limitations on the conversion of the preferred stock contained in this Certificate
of Designation), (3) Common Stock issuable upon exercise of outstanding stock options, and (4) Common Stock issuable upon exercise
(and, in the case of warrants to purchase preferred stock, conversion) of outstanding warrants. Shares described in (1) through (4) above
shall be included whether vested or unvested, whether contingent or non-contingent and whether exercisable or not yet exercisable.


 


(B)            No
adjustment of the Series D Conversion Price shall be made in an amount less than one cent per share, provided that
any adjustments that are not required to be made by reason of this sentence shall be carried forward and shall be either taken into account
in any subsequent adjustment made prior to three (3) years from the date of the event giving rise to the adjustment being carried
forward, or shall be made at the end of three (3) years from the date of the event giving rise to the adjustment being carried forward.
Except to the limited extent provided for in subsections (E)(3) and (E)(4), no adjustment of such Conversion Price pursuant to subsection
6(e)(i) shall have the effect of increasing the Conversion Price above the Conversion Price in effect immediately prior to such adjustment.


 






    	 	C-10	 



     


    

 


(C)            In
the case of the issuance of Common Stock for cash, the consideration shall be deemed to be the amount of cash paid therefor before deducting
any reasonable discounts, commissions or other expenses allowed, paid or incurred by this Corporation for any underwriting or otherwise
in connection with the issuance and sale thereof.


 


(D)            In
the case of the issuance of the Common Stock for a consideration in whole or in part other than cash, the consideration other than cash
shall be deemed to be the fair value thereof as determined in good faith by the Board of Directors, irrespective of any accounting treatment.


 


(E)            In
the case of the issuance of options to purchase or rights to subscribe for Common Stock, securities by their terms convertible into or
exchangeable for Common Stock, or options to purchase or rights to subscribe for such convertible or exchangeable securities, the following
provisions shall apply for all purposes of this subsection 6(e)(i) and subsection 6(e)(ii):


 


(1)            The
aggregate maximum number of shares of Common Stock deliverable upon exercise (assuming the satisfaction of any conditions to exercisability,
including without limitation, the passage of time, but without taking into account potential antidilution adjustments) of such options
to purchase or rights to subscribe for Common Stock shall be deemed to have been issued at the time such options or rights were issued
and for a consideration equal to the consideration (determined in the manner provided in subsections 6(e)(i)(C) and (e)(i)(D)), if
any, received by this Corporation upon the issuance of such options or rights plus the minimum exercise price provided in such options
or rights (without taking into account potential antidilution adjustments) for the Common Stock covered thereby.


 


(2)            The
aggregate maximum number of shares of Common Stock deliverable upon conversion of, or in exchange for (assuming the satisfaction of any
conditions to convertibility or exchangeability, including, without limitation, the passage of time, but without taking into account potential
antidilution adjustments), any such convertible or exchangeable securities or upon the exercise of options to purchase or rights to subscribe
for such convertible or exchangeable securities and subsequent conversion or exchange thereof, shall be deemed to have been issued at
the time such securities were issued or such options or rights were issued and for a consideration equal to the consideration, if any,
received by this Corporation for any such securities and related options or rights (excluding any cash received on account of accrued
interest or accrued dividends), plus the minimum additional consideration, if any, to be received by this Corporation (without taking
into account potential antidilution adjustments) upon the conversion or exchange of such securities or the exercise of any related options
or rights (the consideration in each case to be determined in the manner provided in subsections 6(e)(i)(C) and (e)(i)(D)).


 






    	 	C-11	 



     


    

 


(3)            In
the event of any change in the number of shares of Common Stock deliverable or in the consideration payable to this Corporation upon exercise
of such options or rights or upon conversion of or in exchange for such convertible or exchangeable securities, including, but not limited
to, a change resulting from the antidilution provisions thereof; the Series D Conversion Price to the extent in any way affected
by or computed using such options, rights or securities, shall be recomputed to reflect such change, but no further adjustment shall be
made for the actual issuance of Common Stock or any payment of such consideration upon the exercise of any such options or rights or the
conversion or exchange of such securities.


 


(4)            Upon
the expiration of any such options or rights, the termination of any such rights to convert or exchange or the expiration of any options
or rights related to such convertible or exchangeable securities, the Series D Conversion Price to the extent in any way affected
by or computed using such options, rights or securities or options or rights related to such securities, shall be recomputed to reflect
the issuance of only the number of shares of Common Stock (and convertible or exchangeable securities that remain in effect) actually
issued upon the exercise of such options or rights, upon the conversion or exchange of such securities or upon the exercise of the options
or rights related to such securities.


 


(5)            The
number of shares of Common Stock deemed issued and the consideration deemed paid therefor pursuant to subsections 6(e)(i)(E)(1) and
(2) shall be appropriately adjusted to reflect any change, termination or expiration of the type described in either subsection 6(e)(i)(E)(3) or
(4).


 


(ii)            "Additional
Stock" shall mean any shares of Common Stock issued (or deemed to have been issued pursuant to subsection 6(e)(i)(E)) by this
Corporation on or after the Filing Date other than:


 


(A)            Common
Stock issued pursuant to a transaction described in subsection 4(e) hereof;


 


(B)            Common
Stock issued to employees, directors, consultants and other service providers for the primary purpose of soliciting or retaining their
services pursuant to plans or agreements approved by this Corporation's Board of Directors, provided, however,
that the total number of shares exempt pursuant to this sub-section shall not exceed 10% of the Corporation's total number of shares of
Common Stock issued and outstanding on a fully diluted basis at such time of issuance;


 






    	 	C-12	 



     


    

 


(C)            Common
Stock issued pursuant to a Qualified Public Offering;


 


(D)            Common
Stock issued pursuant to the conversion or exercise of convertible or exercisable securities outstanding on the Filing Date;


 


(E)            Common
Stock issued in connection with a bona fide business acquisition of or by this Corporation, whether by merger, consolidation, sale of
assets, sale or exchange of stock or otherwise;


 


(F)            Common
Stock issued or deemed issued pursuant to subsection 6(e)(i)(E) as a result of a decrease in the Conversion Price of any series of
preferred stock resulting from the operation of this subsection 6(e);


 


(G)            Common
Stock issued or deemed issued in connection with bank debt, equipment leases or similar credit facilities, provided such issuances are
for other than primarily equity financing purposes and approved by the Board of Directors; or


 


(H)            Common
Stock issued upon conversion of the Series D Preferred Stock.


 


(iii)            In
the event this Corporation should at any time or from time to time after the Filing Date fix a record date for the effectuation of a split
or subdivision of the outstanding shares of Common Stock without a corresponding split or subdivision of the Series D Preferred Stock
or the determination of holders of Common Stock entitled to receive a dividend or other distribution payable in additional shares of Common
Stock or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly, additional shares
of Common Stock (hereinafter referred to as "Common Stock Equivalents") without payment of any consideration by such holder
for the additional shares of Common Stock or the Common Stock Equivalents (including the additional shares of Common Stock issuable upon
conversion or exercise thereof), then, as of such record date (or the date of such dividend distribution, split or subdivision if no record
date is fixed), the Conversion Price of the Series D Preferred Stock shall be appropriately decreased so that the number of shares
of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such increase of the aggregate
of shares of Common Stock outstanding and those issuable with respect to such Common Stock Equivalents with the number of shares issuable
with respect to Common Stock Equivalents determined from time to time in the manner provided for deemed issuances in subsection 6(e)(i)(E).


 






    	 	C-13	 



     


    

 


(iv)            If
the number of shares of Common Stock outstanding at any time after the Filing Date is decreased by a combination of the outstanding shares
of Common Stock, without a corresponding decrease of the Series D Preferred Stock then, following the record date of such combination,
the Series D Conversion Price shall be appropriately increased so that the number of shares of Common Stock issuable on conversion
of each share of such series shall be decreased in proportion to such decrease in outstanding shares.


 


(f)            Other
Distributions. In the event this Corporation shall declare a distribution payable in securities of other persons, evidences of indebtedness
issued by this Corporation or other persons, assets (excluding cash dividends) or options or rights not referred to in subsection 6(e)(iii),
then, in each such case for the purpose of this subsection 6(f), the holders of the Series D Preferred Stock shall be entitled to
a proportionate share of any such distribution as though they were the holders of the number of shares of Common Stock of this Corporation
into which their shares of Series D Preferred Stock are convertible as of the record date fixed for the determination of the holders
of Common Stock of this Corporation entitled to receive such distribution without regard to any limitations on the conversion of the Series D
Preferred Stock contained in this Certificate of Designation.


 


(g)            Recapitalizations.
If at any time or from time to time there shall be a recapitalization of the Common Stock (other than a subdivision, combination or merger
or sale of assets transaction provided for elsewhere in this Section 6) the holders of the Series D Preferred Stock shall thereafter
be entitled to receive upon conversion of the Series D Preferred Stock the number of shares of stock or other securities or property
of this Corporation or otherwise, to which a holder of Common Stock deliverable upon conversion would have been entitled on such recapitalization.
In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 6 with respect to the
rights of the holders of the Series D Preferred Stock after the recapitalization to the end that the provisions of this Section 6
(including adjustment of the Series D Conversion Price then in effect and the number of shares purchasable upon conversion of the
Series D Preferred Stock) shall be applicable after that event as nearly equivalent as may be practicable.


 


(h)            No
Fractional Shares and Certificate as to Adjustments.


 


(i)            No
fractional shares shall be issued upon the conversion of any share or shares of the Series D Preferred Stock and the aggregate number
of shares of Common Stock to be issued to particular stockholders, shall either, at the Corporation's option, be rounded (A) up to
the nest whole share or (b) down to the nearest whole share and the Corporation shall pay in cash the fair value of any fractional
shares as of the time when entitled to receive such fractions are determined, provided, however, that the
Corporation may not round down if the nearest whole share is less than one (1).


 






    	 	C-14	 



     


    

 


(ii)            Upon
the occurrence of each adjustment or readjustment of the Series D Conversion Price pursuant to this Section 6, this Corporation,
at its expense, shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to
each holder of Series D Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts
upon which such adjustment or readjustment is based. This Corporation shall furnish or cause to be furnished to such holder a like certificate
setting forth (A) such adjustment and readjustment, (B) the Series D Conversion Price at the time in effect, and (C) the
number of shares of Common Stock and the amount, if any, of other property that at the time would be received upon the conversion of a
share of Series D Preferred Stock.


 


(i)            Notices
of Record Date. In the event of any taking by this Corporation of a record of the holders of any class of securities for the purpose
of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other distribution, this Corporation
shall mail to each holder of Series D Preferred Stock, at least ten (10) days prior to the date specified therein, a notice
specifying the date on which any such record is to be taken for the purpose of such dividend, distribution, and the amount and character
of such dividend or distribution.


 


(j)            Reservation
of Stock Issuable Upon Conversion. This Corporation shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of the shares of the Series D Preferred Stock, such number
of its shares of Common Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of the Series D
Preferred Stock (without regard to any limitations on the conversion of the Series D Preferred Stock contained in this Certificate
of Designation); and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Series D Preferred Stock, in addition to such other remedies as shall be available
to the holders of such Series D Preferred Stock, this Corporation will take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purposes,
including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment of the
Certificate of Incorporation.


 


(k)            Notices.
Any notice required by the provisions of this Section 6 to be given to the holders of shares of Series D Preferred Stock shall
be deemed given if deposited in the United States mail, postage prepaid, and addressed to each holder of record at such holder's address
appearing on the books of this Corporation.


 


(l)            Waiver
of Adjustment to Conversion Price. Notwithstanding anything herein to the contrary, any downward adjustment of the Series D Conversion
Price may be waived, either prospectively or retroactively or in a particular instance, by the consent or vote of all holders of the outstanding
shares of Series D Preferred Stock (with regard to the Series D Conversion Price). Any such waiver shall bind all future holders
of shares of Series D Preferred Stock.


 






    	 	C-15	 



     


    

 


7.
Voting Rights. The holder of each share of Series D Preferred Stock shall have the right to one vote for each share
of Common Stock into which such Series D Preferred Stock could then be converted, and with respect to such vote, such holder shall
have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock, and shall be entitled, notwithstanding
any provision hereof, to notice of any stockholders' meeting in accordance with the bylaws of this Corporation, shall be entitled to vote,
together with holders of Common Stock, with respect to any question upon which holders of Common Stock have the right to vote. Fractional
votes shall not, however, be permitted and any fractional voting rights available on an as-converted basis (after aggregating all shares
into which shares of Series D Preferred Stock held by each holder could be converted) shall be rounded to the nearest whole number
(with one-half being rounded upward).


  


8.
Protective Provisions.


 


(a)            This
Corporation shall not consummate a Liquidation Event without first obtaining the approval (by vote or written consent, as provided by
law) of the holders of each of a majority of the then outstanding shares of Series D Preferred Stock, voting separately;


 


(b)            This
Corporation shall not, without first obtaining the approval (by vote or written consent, as provided by law) of the holders of each of
a majority of the then outstanding shares of Series D Preferred Stock, voting separately:


 


(i)            authorize
or issue, or obligate itself to issue, any equity security (including any other security convertible into or exercisable for any such
equity security) having a preference over or parity with the Series D Preferred Stock with respect to dividends, liquidation, redemption
or voting;


 


(ii)            amend
the Certificate of Incorporation or the Corporation's bylaws to adversely affect the rights, preferences and privileges of the Series D
Preferred Stock;


 


(iii)            enter
into, or consummate the merger or consolidation of this Corporation with or into another entity, or


 


(iv)            voluntarily
dissolve, liquidate or wind up the affairs of the Corporation or voluntarily petition for bankruptcy or assignment for the benefit of
creditors.


 


9.
Status of Converted Stock. In the event any shares of Series D Preferred Stock shall be converted pursuant to Section 6
hereof, the shares so converted shall be cancelled and shall not be issuable by this Corporation. The Certificate of Incorporation of
this Corporation shall be appropriately amended to effect the corresponding reduction in this Corporation's authorized capital stock.


 






    	 	C-16