Exhibit
10.1


 


JUNE
2018 AMENDMENT AND EXCHANGE AGREEMENT


 


This
Amendment and Exchange Agreement (the “Agreement”) is entered into as of the 28th day of June, 2018, by and
between Helios and Matheson Analytics Inc., a Delaware corporation with offices located at Empire State Building, 350 5th Avenue,
New York, New York 10118 (the “Company”) and the investor signatory hereto (the “Holder”),
with reference to the following facts:


 


A.
Prior to the date hereof, the Holder acquired, among other things, those certain warrants to purchase Common Stock (as defined
below) of the Company (the “Existing Warrants”) exercisable (without regards to any limitations on exercise
set forth therein) into such aggregate number of shares of Common Stock as set forth on the signature page of the Holder attached
hereto (the “Existing Warrant Shares”).


 


B.
The Company and the Holder desire to exchange (collectively, the “Exchange” or the “Transaction”)
the Existing Warrants for such aggregate number of shares of Common Stock as set forth on the signature page of the Holder attached
hereto (collectively, the “Exchange Common Shares”) and/or Rights (as defined below) to receive such aggregate
number of Reserved Shares (as defined below) as set forth on the signature page of the Holder attached hereto, representing a
rate of 0.85 Exchange Common Shares (or Reserved Share, as applicable) for each 1.0 Existing Warrant Share. The Exchange Common
Shares and the Reserved Shares are referred to herein as the “Exchange Shares” and together with the Rights,
the “Exchange Securities”. The Exchange Securities, this Agreement, the Voting Agreement (as defined below)
and the Leak-Out Agreement (as defined below) and such other documents and certificates related thereto are collectively referred
to herein as the “Exchange Documents”.


 


C.
On June 21, 2018, the Company and certain investors (the “June Buyers”) entered into a securities purchase
agreement (as amended prior to the date hereof, the “June Securities Purchase Agreement”), pursuant to which
such June Buyers purchased, among other things, certain Notes (as defined in the June Securities Purchase Agreement) (the “June
Notes”). On January 11, 2018, the Company and certain investors (the “January Buyers”) entered into
a securities purchase agreement (as amended prior to the date hereof, pursuant to which, among other things, such January Buyers
purchased certain January Notes (as defined in the June Notes). On November 6, 2017, the Company and certain investors (each,
a “November Buyer”) entered into a securities purchase agreement (as amended prior to the date hereof, pursuant
to which, among other things, such November Buyers purchased certain November Notes (as defined in the June Notes).


 


D.
The Exchange is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act
of 1933, as amended (the “Securities Act”).


 


E.
Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the June Securities Purchase Agreement.


 


F.
Concurrently herewith, the Company is separately negotiating, and intends to implement, the exchange of other warrants to purchase
Common Stock (the “Other Warrants”) that are currently outstanding by entering into agreements (the "Other
Agreements") in the same form as this Agreement (other than proportional changes based upon the difference in aggregate
number of shares of Common Stock issuable upon exercise of such warrants and the payment of legal expenses with respect here).


 






     

     

    

 


NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree
as follows:


 


1.
Exchange.


 


1.1
The Exchange.


 


(a)
On the date hereof, the Holder hereby agrees to convey, assign and transfer the Existing Warrants to the Company in exchange for
which the Company agrees to issue pursuant to Section 3(a)(9) of the Securities Act the Exchange Common Shares and, if applicable,
the Rights, to the Holder on the books and records of the Company, which Exchange Common Shares and, if applicable, the Rights
shall be issued without restricted legend and shall be freely tradable by the Holder. By no later than the second (2nd)
Trading Day after the date hereof (the “Share Delivery Deadline”), the Company shall (a) deliver the Exchange
Common Shares by deposit/withdrawal at custodian with the Depository Trust Company (“DTC”) in accordance with
the instructions attached hereto as Schedule I and (b) if applicable, cause to be delivered to the Holder (or its
designee) a certificate evidencing the Rights at the address for delivery set forth on the Schedule of Buyers to the August Securities
Purchase Agreement. For the avoidance of doubt, as of the date hereof, the Holder shall be the legal owner of the Exchange Common
Shares and, if applicable, the Rights regardless as to the date of actual delivery of the Exchange Common Shares or the certificate
evidencing the Rights to the Holder (or its designee, as applicable).


 


(b)Upon
the consummation of the Exchange, the Existing Warrants shall be automatically cancelled and shall be null and void.


 


(c)
On or prior to the date hereof, counsel for the Company shall have delivered a legal opinion to the Company's transfer agent (the
“Transfer Agent”) and irrevocable instructions to the Transfer Agent from the Company, in each case, instructing
the Transfer Agent to deliver the Exchange Common Shares as set forth on the Holder's signature page attached hereto, to the Holder's
balance account with The Depository Trust Company through its Deposit / Withdrawal at Custodian system in accordance with Schedule
I attached hereto as soon as commercially practicable, but in no event later than the Share Delivery Deadline.


 


(d)
On or prior to the date hereof, the Company shall have obtained all governmental, regulatory or third party consents and approvals,
if any, necessary for the Transactions.


 






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1.2
Buy-In. If the Company shall fail for any reason or for no reason to deliver to the Holder on the Share Delivery Deadline
the Exchange Common Shares by electronic delivery at the applicable balance account at DTC, and if on or after the Closing Date
the Holder effects a Buy-In (as defined in the Warrants), then the Company shall, within two (2) Trading Days after the Holder's
request and in the Holder's discretion, either (i) pay the Buy-In Price (as defined in the Warrants) in cash, at which point the
Company's obligation to deliver such Exchange Common Shares shall terminate, or (ii) promptly honor its obligation to electronically
deliver to the Holder such unlegended Exchange Common Shares as provided above and pay cash to the Holder in an amount equal to
the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Stock, times (B) any trading price
of the Common Stock selected by the Holder in writing as in effect at any time during the period beginning on the date hereof
and ending on the date the Company satisfies its obligations in full pursuant to this Section 1.2.


 


1.3
Voting Agreement; Leak-Out Agreement. On or prior to the date hereof, the Holder has duly executed and delivered to the
Company, and the Company has duly executed and delivered to the Holder (x) solely if the Holder is not a June Buyer, a voting
agreement in the form attached hereto as Exhibit A (the “Voting Agreement”) and (y) a leak-out
agreement in the form attached hereto as Exhibit B (the “Leak-Out Agreement”).


 


2.
Waivers. [The Holder hereby waives any right that the Holder may have in any Convertible Security
of the Company held by the Holder (including, without limitation, with respect to the Existing Warrants, November Notes, January
Notes and June Notes, if any, held by the Holder) to adjust the conversion price or exercise price of such security solely as
a result of the issuance of the any Exchange Securities hereunder or pursuant to any Other Agreement.]


 


 [The Holder, (i) in its capacity as the “Required Holders” under each of the November Notes, January Notes
and June Notes, hereby waives any adjustment to the conversion price of the November Notes, January Notes and June Notes solely
as a result of the issuance of the Exchange Securities hereunder or pursuant to any Other Agreement and (ii) in its capacity as
a holder of Series A-2 Warrants issued by the Company on April 23, 2018 (the “Series A-2 Warrants”), hereby waives
any adjustment to the exercise price of the Series A-2 Warrants solely as a result of the issuance of the Exchange Securities
hereunder or pursuant to any Other Agreement.]


 


 [The Holder, in its capacity as a holder of Series A-2 Warrants issued by the Company on April 23, 2018 (the
“Series A-2 Warrants”), hereby waives any adjustment to the exercise price of the Series A-2 Warrants solely as a
result of the issuance of the Exchange Securities hereunder or pursuant to any Other Agreement.]


 






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3.
Representations and Warranties. As of the date hereof:


 


3.1
Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly
existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority
to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each
of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every
jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary,
except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material
Adverse Effect (as defined below). As used in this Agreement, “Material Adverse Effect” means any material
adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial
or otherwise) or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated
hereby or in any of the other Exchange Documents or (iii) the authority or ability of the Company or any of its Subsidiaries to
perform any of their respective obligations under any of the Exchange Documents. Other than the Persons (as defined below) listed
in the SEC Documents, the Company has no Subsidiaries. “Subsidiaries” means any Person in which the Company,
directly or indirectly, (I) owns any of the outstanding capital stock or holds any equity or similar interest of such Person or
(II) controls or operates all or any part of the business, operations or administration of such Person, and each of the foregoing,
is individually referred to herein as a “Subsidiary.” For purposes of this Agreement, (x) “Person”
means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization,
any other entity and any Governmental Entity or any department or agency thereof and (y) “Governmental Entity”
means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal, state,
local, municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body
exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority
or power of any nature or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a
government or a public international organization or any of the foregoing.


 


3.2
Authorization and Binding Obligation. The Company has the requisite power and authority to enter into and perform its obligations
under this Agreement and the Rights and each of the other agreements entered into by the parties hereto in connection with the
transactions contemplated by the Exchange Documents and to consummate the Transaction (including, without limitation, the issuance
of the Rights and the Exchange Common Shares (the “Exchange Primary Securities”) in accordance with the terms
hereof). The execution and delivery of the Exchange Documents by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby, including, without limitation, the issuance of the Exchange Primary Securities and the reservation
for issuance and issuance of Reserved Shares issuable upon exercise of the Rights has been duly authorized by the Company's Board
of Directors and no further filing, consent, or authorization is required by the Company, its Board of Directors or its stockholders.
This Agreement and the other Exchange Documents have been duly executed and delivered by the Company, and constitute the legal,
valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except
as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors' rights and remedies
and except as rights to indemnification and to contribution may be limited by federal or state securities laws.


 






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3.3
No Conflict. The execution, delivery and performance of the Exchange Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Exchange Primary
Securities and the reservation for issuance and issuance of Reserved Shares issuable upon exercise of the Rights) will not (i)
result in a violation of the Certificate of Incorporation (as defined below) or any other organizational documents of the Company
or any of its Subsidiaries, any capital stock of the Company or any of its Subsidiaries or Bylaws (as defined below) 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 foreign, federal and state securities laws and regulations and the rules
and regulations of the Nasdaq Capital Market (the “Principal Market”) and including all applicable federal
laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company
or any of its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations
that would not reasonably be expected to have a Material Adverse Effect.


 


3.4
No Consents. Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of,
or make any filing or registration with (other than the filing with the Securities and Exchange Commission (the “SEC”)
of a Form D with the SEC, any other filings as may be required by any state securities agencies, filing of UCC financing statements
and approval by the Principal Market of a listing of additional shares application in respect of the Exchange Shares as required
by Section 7 hereof), any court, governmental agency or any regulatory or self-regulatory agency or any other Person in order
for it to execute, deliver or perform any of its respective obligations under or contemplated by the Exchange Documents, in each
case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the
Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior
to the date hereof, and neither the Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent
the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated
by the Exchange Documents. Except as disclosed in the SEC Documents, the Company is not in violation of the requirements of the
Principal Market and has no knowledge of any facts or circumstances which would reasonably lead to delisting or suspension of
the Common Stock in the foreseeable future.


 


3.5
Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Holder contained herein,
the offer and issuance by the Company of the Exchange Securities is exempt from registration under the Securities Act pursuant
to the exemption provided by Section 3(a)(9) thereof.


 


3.6
Status of Existing Warrants; Issuance of Exchange Securities. By virtue of Section 3(a)(9) of the Securities Act, the Exchange
Securities shall not bear any restrictive legend and shall be freely tradeable by the Holder pursuant to and in accordance with
Rule 144. The issuance of the Rights has been duly authorized and upon issuance in accordance with the terms of the Exchange Documents
shall be validly issued, fully paid and non-assessable and free from all Liens. Upon issuance in accordance herewith or pursuant
to the Rights, as applicable, the Exchange Common Shares and the Reserved Shares, respectively, when issued, will be validly issued,
fully paid and nonassessable and free from all Liens with respect to the issue thereof, with the holders being entitled to all
rights accorded to a holder of Common Stock.


 


3.7
Transfer Taxes. On the date hereof, all share transfer or other taxes (other than income or similar taxes) which are required
to be paid in connection with the issuance of the Exchange Primary Securities to be exchanged with the Holder 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.


 






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3.8
SEC Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all
reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to
the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof, including without limitation,
Current Reports on Form 8-K filed by the Company with the SEC whether required to be filed or not (but excluding Item 7.01 thereunder),
and all exhibits and appendices included therein (other than Exhibits 99.1 to Form 8-K) and financial statements, notes and schedules
thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”).
The Company has delivered or has made available to the Holder or its representatives true, correct and complete copies of each
of the SEC Documents not available on the EDGAR system. As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements
of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements
have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied,
during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments
which will not be material, either individually or in the aggregate). No other information provided by or on behalf of the Company
to the Holder which is not included in the SEC Documents (including, without limitation, information in the disclosure schedules
to this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to
make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is
not currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes or any
letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial
Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend
or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with
GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend
that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate
any of the Financial Statements.


 






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3.9
Absence of Certain Changes. Except as set forth in the SEC Documents, since the date of the Company’s most recent
financial statements contained in a Form 10-Q, there has been no material adverse change and no material adverse development in
the business, assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects
of the Company or any of its Subsidiaries. Since the date of the Company’s most recent financial statements contained in
a Form 10-Q, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually
or in the aggregate, outside of the ordinary course of business or (iii) except as disclosed in the SEC Documents, made any capital
expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its
Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization,
receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any
of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which
would reasonably lead a creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, are not
as of the date hereof, and after giving effect to the transactions contemplated hereby to occur on the date hereof, will not be
Insolvent.


 


3.10
No Undisclosed Events, Liabilities, Developments or Circumstances. Except as set forth in the SEC Documents, no event,
liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect to the
Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations (including
results thereof) or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under applicable
securities laws on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by the Company of
its Common Stock and which has not been publicly announced, (ii) would reasonably expected to have a material adverse effect on
the Holder’s investment hereunder or (iii) would reasonably be expected to have a Material Adverse Effect.


 


3.11
Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of
or in default under its Certificate of Incorporation, any certificate of designation, preferences or rights of any other outstanding
series of preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of
formation, memorandum of association, articles of association, Certificate of Incorporation or bylaws, respectively. Except as
set forth in the SEC Documents, neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order
or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor
any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations
which could not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth in the SEC Documents, without
limiting the generality of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of
the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension
of the Common Stock by the Principal Market in the foreseeable future. During the two years prior to the date hereof, (i) the
Common Stock has been listed or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been
suspended by the SEC or the Principal Market and (iii) except as set forth in the SEC Documents, the Company has received no communication,
written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal
Market. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates,
authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or
any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected
to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any
acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries
as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably
be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries.


 






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3.12
Transactions With Affiliates. Except as set forth in the SEC Documents, no current or former employee, partner, director,
officer or stockholder (direct or indirect) of the Company or its Subsidiaries, or any associate, or, to the knowledge of the
Company, any affiliate of any thereof, or any relative with a relationship no more remote than first cousin of any of the foregoing,
is presently, or has ever been, (i) a party to any transaction with the Company or its Subsidiaries (including any contract, agreement
or other arrangement providing for the furnishing of services by, or rental of real or personal property from, or otherwise requiring
payments to, any such director, officer or stockholder or such associate or affiliate or relative Subsidiaries (other than for
ordinary course services as employees, consultants, officers or directors of the Company or any of its Subsidiaries)) or (ii)
the direct or indirect owner of an interest in any corporation, firm, association or business organization which is a competitor,
supplier or customer of the Company or its Subsidiaries (except for a passive investment (direct or indirect) in less than 5%
of the common stock of a company whose securities are traded on or quoted through an Eligible Market (as defined in the June Notes)),
nor does any such Person receive income from any source other than the Company or its Subsidiaries which relates to the business
of the Company or its Subsidiaries or should properly accrue to the Company or its Subsidiaries. No employee, officer, stockholder
or director of the Company or any of its Subsidiaries or member of his or her immediate family is indebted to the Company or its
Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries indebted (or committed to make loans or extend
or guarantee credit) to any of them, other than (i) for payment of salary for services rendered, (ii) reimbursement for reasonable
expenses incurred on behalf of the Company, and (iii) for other standard employee benefits made generally available to all employees
or executives (including stock option agreements outstanding under any stock option plan approved by the Board of Directors of
the Company).


 


3.13
Equity Capitalization.


 


(a)
Definitions:


 


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


 


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


 






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(b)
Authorized and Outstanding Capital Stock. As of June 26, 2018, the authorized capital stock of the Company consists of
(A) Five Hundred Million (500,000,000) shares of Common Stock, of which, 227,252,709 are issued and outstanding as of the date
hereof and 419,822,957 of which are reserved for issuance pursuant to the Equity Incentive Plan, the Company’s outstanding
Convertible Securities and other obligations of the Company, and (B) Two Million (2,000,000) shares of Preferred Stock, 20,500
shares of which are designated as Series A Preferred Stock and are issued and outstanding before giving effect to the Closing.
No shares of Common Stock are held in the treasury of the Company. “Convertible Securities” means any capital stock
or other security of the Company or any of its Subsidiaries 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) or any of its Subsidiaries.


 


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


 


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


 






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(e)
Organizational Documents. The Company has furnished to the Buyers true, correct and complete copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”)
and the Company’s bylaws, as amended and as in effect on the date hereof. (the “Bylaws”).


 


3.14
Indebtedness and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC Documents
or Schedule 3(s) of the June Securities Purchase Agreement, has any outstanding debt securities, notes, credit agreements, credit
facilities or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or
by which the Company or any of its Subsidiaries is or may become bound, (ii) is a party to any contract, agreement or instrument,
except as disclosed in the SEC Documents, the violation of which, or default under which, by the other party(ies) to such contract,
agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing statements
securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries, except as disclosed in the
SEC Documents; (iv) except as waived by the Holder under Section 2(b) of this Agreement, is in violation of any term of, or in
default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would
not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract, agreement or instrument
relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or is expected to
have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations required to
be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course
of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or
could not have a Material Adverse Effect.


 


3.15
Litigation There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market,
any court, public board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its
Subsidiaries’ officers or directors that would reasonably be expected to have a Material Adverse Effect on the Company or
its Subsidiaries, whether of a civil or criminal nature or otherwise, in their capacities as such, except as disclosed in the
SEC Documents or in Schedule 3(t) of the June Securities Purchase Agreement. No director, officer or employee of the Company or
any of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation of litigation.
Without limitation of the foregoing, there has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the SEC involving the Company, any of its Subsidiaries or any current or former director or officer of the
Company or any of its Subsidiaries. The SEC has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the 1933 Act or the 1934 Act. Neither the Company nor any of its Subsidiaries is subject
to any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.


 






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3.16
Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided the Holder or its
agents or counsel with any information that constitutes or would 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 Exchange Documents. The Company understands and confirms that the Holder will rely on the foregoing representations
in effecting transactions in securities of the Company. All disclosure provided to the Holder regarding the Company and its Subsidiaries,
their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf
of the Company or any of its Subsidiaries is true and correct 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. Each press release issued by the Company or any of its Subsidiaries during the twelve (12)
months preceding the date of this Agreement did not at the time of release contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading. No event or circumstance has occurred or information exists with
respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including
results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure
at or before the date hereof or announcement by the Company but which has not been so publicly announced or disclosed.


 


3.17Commissions.The
Company confirms that no commission or other remuneration has been paid or given directly or indirectly for soliciting the exchange
of the Existing Warrants for the Exchange Shares.


 


4.
Holder’s Representations and Warranties. As a material inducement to the Company to enter into this Agreement and
consummate the Exchange, the Holder represents, warrants and covenants with and to the Company as follows:


 


4.1
Reliance on Exemptions. The Holder understands that the Exchange Securities are being offered and exchanged in reliance
on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company
is relying in part upon the truth and accuracy of, and the Holder’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Holder set forth herein and in the Exchange Documents in order to determine the availability
of such exemptions and the eligibility of the Holder to acquire the Exchange Securities.


 


4.2
No Governmental Review. The Holder 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 Exchange Securities or the fairness or suitability
of the investment in the Exchange Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Exchange Securities.


 






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4.3
Validity; Enforcement. This Agreement and the Exchange Documents to which the Holder is a party have been duly and validly
authorized, executed and delivered on behalf of the Holder and shall constitute the legal, valid and binding obligations of the
Holder enforceable against the Holder in accordance with their respective terms, except as such enforceability may be limited
by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.


 


4.4
Intentionally Omitted.


 


4.5
No Conflicts. The execution, delivery and performance by the Holder of this Agreement and the Exchange Documents to which
the Holder is a party, and the consummation by the Holder of the transactions contemplated hereby and thereby will not (i) result
in a violation of the organizational documents of the Holder or (ii) conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture or instrument to which the Holder 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 the Holder, 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 the Holder to perform its obligations
hereunder.


 


4.6
Investment Risk; Sophistication. The Holder is acquiring the Exchange Securities hereunder in the ordinary course of its
business. The Holder has such knowledge, sophistication, and experience in business and financial matters so as to be capable
of evaluation of the merits and risks of the prospective investment in the Exchange Securities, and has so evaluated the merits
and risk of such investment. The Holder is an “accredited investor” as defined in Regulation D under the Securities
Act.


 


4.7
Ownership of Existing Warrants. The Holder owns the Existing Warrants free and clear of any Liens (other than the obligations
pursuant to this Agreement, liens in the ordinary course of business (e.g. bone fide margin account liens) and applicable securities
laws).


 


5.
Disclosure of Transaction. The Company shall, on or before 8:30 a.m., New York City Time, on or prior to the first
business day after the date of this Agreement, file a Current Report on Form 8-K describing the terms of the transactions contemplated
hereby in the form required by the 1934 Act and attaching the Exchange Documents, to the extent they are required to be filed
under the 1934 Act, that have not previously been filed with the SEC by the Company (including, without limitation, this Agreement)
as exhibits to such filing (including all attachments, the “8-K Filing”). From and after the filing of the
8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided up to such time to the Holder
by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents. In addition, effective
upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement with respect to the transactions contemplated by the Exchange Documents or as otherwise disclosed in the 8-K
Filing, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
affiliates, employees or agents, on the one hand, and any of the Holder or any of their affiliates, on the other hand, shall terminate.
Neither the Company, its Subsidiaries nor the Holder 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 the Holder, to make a press release or other public disclosure with respect to such transactions (i) in
substantial conformity with the 8-K Filing and contemporaneously therewith or (ii) as is required by applicable law and regulations
(provided that in the case of clause (i) the Holder shall be consulted by the Company in connection with any such press release
or other public disclosure prior to its release). Without the prior written consent of the Holder (which may be granted or withheld
in the Holder’s sole discretion), except as required by applicable law, the Company shall not (and shall cause each of its
Subsidiaries and affiliates to not) disclose the name of the Holder in any filing, announcement, release or otherwise.


 






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6.
No Integration. None of the Company, its Subsidiaries, any of their affiliates, or any Person acting on their behalf
shall, directly or indirectly, make any offers or sales of any security (as defined in the Securities Act) or solicit any offers
to buy any security or take any other actions, under circumstances that would require registration of any of the Exchange Securities
under the Securities Act or cause this offering of the Exchange Securities to be integrated with such offering or any prior offerings
by the Company for purposes of Regulation D under the Securities Act.


 


7.
Listing. The Company shall promptly secure the listing or designation for quotation (as applicable) of all of the
Exchange Shares upon the Principal Market (subject to official notice of issuance) and shall maintain such listing of all the
Exchange Shares from time to time issuable under the terms of the Exchange Documents. The Company shall maintain the Common Stock’s
authorization for quotation on the Principal Market. Neither the Company nor any of its Subsidiaries shall take any action which
would be reasonably expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company
shall pay all fees and expenses in connection with satisfying its obligations under this Section 7.


 


8.
Fees. The Company shall promptly reimburse Kelley Drye & Warren, LLP (counsel to the lead investor), on demand,
for all reasonable, documented costs and expenses incurred by it in connection with preparing and delivering this Agreement (including,
without limitation, all reasonable, documented legal fees and disbursements in connection therewith, and due diligence in connection
with the transactions contemplated thereby) in an aggregate amount not to exceed $[ ].


 


9.
Holding Period. For the purposes of Rule 144, the Company acknowledges that the holding period of (a) the Exchange
Common Shares may be tacked onto the holding period of the Existing Warrants, and (b) the Rights (and upon exercise of the Rights,
the Reserved Shares) may be tacked onto the holding period of the Existing Warrants, and the Company agrees not to take a position
contrary to this Section 9. The Company acknowledges and agrees that (assuming the Holder is not an affiliate of the Company)
(i) upon issuance in accordance with the terms hereof, the Exchange Common Shares and, upon exercise of the Rights, the Reserved
Shares, respectively, are, as of the date hereof, eligible to be resold pursuant to Rule 144, (ii) the Company is not aware of
any event reasonably likely to occur that would reasonably be expected to result in the Exchange Shares becoming ineligible to
be resold by the Holder pursuant to Rule 144 and (iii) in connection with any resale of any Exchange Shares pursuant to Rule 144,
the Holder shall solely be required to provide reasonable assurances that such Exchange Shares are eligible for resale, assignment
or transfer under Rule 144, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for
any transfer agent fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any,
or issuance of Exchange Shares in accordance herewith.


 






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10.
Blue Sky. The Company shall make all filings and reports relating to the Exchange required under applicable securities
or “Blue Sky” laws of the states of the United States following the date hereof, if any.


 


11.
Right to Issue Shares.


 


11.1
General. On the date hereof, as par, the Company shall issue to the Holder rights (the “Rights”) to
receive such aggregate number of shares of Common Stock (if any) as set forth on the signature page of the Holder attached hereto
(collectively, the “Reserved Shares”) to the Holder, which shall have such terms and conditions as set forth
in this Section 11. The Company and the Holder hereby agree that no additional consideration is payable in connection with the
issuance of the Rights or the exercise of the Rights.


 


11.2
Exercise of Right of Issuance of Shares. Subject to the terms hereof, the exercise of the Rights may be made, in whole
or in part, at any time or times on or after the date hereof by delivery to the Company (or such other office or agency of the
Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books
of the Company) of a duly executed PDF copy of the Notice of Issuance Form annexed hereto as Exhibit A (each, a
“Notice of Issuance”, and the corresponding date thereof, the “Exercise Date”). Partial
exercises of the Rights resulting in issuances of a portion of the total number of Reserved Shares available thereunder shall
have the effect of lowering the outstanding number of Reserved Shares purchasable thereunder in an amount equal to the applicable
number of Reserved Shares issued. The Holder and the Company shall maintain records showing the number of Reserved Shares issued
and the date of such issuances. The Company shall deliver any objection to any Notice of Issuance Form within one (1) Trading
Day of receipt of such notice. The Holder acknowledges and agrees that, by reason of the provisions of this paragraph, following
each exercise of the Rights issued hereunder and the issuance of a portion of the Reserved Shares pursuant thereto, the number
of Reserved Shares available for issuance pursuant to the Rights issued hereunder at any given time may be less than the amount
stated in the recitals hereof.


 


11.3
Delivery of Reserved Shares. The Reserved Shares issued hereunder shall be transmitted by the Transfer Agent to the Holder
by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit/Withdrawal at
Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective
registration statement permitting the issuance of the Reserved Shares to or resale of the Reserved Shares by the Holder or (B)
the Reserved Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144, and
otherwise by physical delivery to the address specified by the Holder in the Notice of Issuance by the date that is two (2) Trading
Days after the delivery to the Company of the Notice of Issuance (such date, the “Share Delivery Deadline”).
The Reserved Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall
be deemed to have become the holder of record of such shares for all purposes, as of the date the Rights have been exercised.


 






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11.4
Charges, Taxes and Expenses. Issuance of Reserved Shares shall be made without charge to the Holder for any issue or transfer
tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid
by the Company, and such certificates shall be issued in the name of the Holder. The Company shall pay all Transfer Agent fees
required for same-day processing of any Notice of Issuance.


 


11.5
Authorized Shares. The Company covenants that, during the period the Rights are outstanding, it will reserve from its authorized
and unissued Common Stock a sufficient number of shares to provide for the issuance of the Reserved Shares upon the exercise of
the Rights. The Company further covenants that its issuance of the Rights shall constitute full authority to its officers who
are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Reserved Shares
upon the due exercise of the Rights. The Company will take all such reasonable action as may be necessary to assure that such
Reserved Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements
of the Principal Market upon which the Common Stock may be listed. The Company covenants that all Reserved Shares which may be
issued upon the exercise of the Rights represented by this Agreement will, upon exercise of the Rights, be duly authorized, validly
issued, fully paid and non-assessable and free from all taxes, Liens and charges created by the Company in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).


 


11.6
Impairment. Except and to the extent as waived or consented to by the Holder, the Company shall not by any action, including,
without limitation, amending its certificate of incorporation or through any reorganization, transfer of assets, consolidation,
merger, 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 Agreement, but will at all times in good faith assist in the carrying out of all such terms and in
the taking of all such actions as may be necessary or appropriate to protect the rights of the Holder as set forth in this Agreement
against impairment. Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any Reserved
Shares above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such
action as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable
Reserved Shares upon the exercise of the Rights and (iii) use reasonable best efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform
its obligations under this Agreement.


 


11.7
Authorizations. Before taking any action which would result in an adjustment in the number of Reserved Shares for which
the Rights provides for, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be
necessary from any public regulatory body or bodies having jurisdiction thereof.


 






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11.8
Limitations on Exercise. The Company shall not effect the exercise of any Rights, and the Holder shall not have the right
to exercise any portion of any Rights pursuant to the terms and conditions of this Agreement and any such exercise shall be null
and void and treated as if never made, to the extent that after giving effect to such exercise, the Holder together with the other
Attribution Parties collectively would beneficially own in excess of 9.99% (the “Beneficial Ownership Limitation”)
of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence,
the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties (as defined
in the June Note) shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus
the number of shares of Common Stock issuable upon exercise of the Rights issued hereunder with respect to which the determination
of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) exercise of the remaining,
nonexercised portion of the Rights beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or
conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any
convertible notes or convertible preferred stock or warrants) beneficially owned by the Holder or any other Attribution Party
subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 11.8. For purposes of
this Section 11.8, beneficial ownership shall be calculated in accordance with Section 13(d) of the 1934 Act (as defined in the
June Note). For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the exercise
of the Rights without exceeding the Beneficial Ownership Limitation, the Holder may rely on the number of outstanding shares of
Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company
or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of shares of Common Stock
outstanding (the “Reported Outstanding Share Number”). If the Company receives a Notice of Issuance from the
Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number,
the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that
such Notice of Issuance would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section
11.8, to exceed the Beneficial Ownership Limitation, the Holder must notify the Company of a reduced number of shares of Common
Stock to be purchased pursuant to such Notice of Issuance. For any reason at any time, upon the written or oral request of the
Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the Holder the number
of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined
after giving effect to the conversion or exercise of securities of the Company, including the Rights, by the Holder and any other
Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance
of shares of Common Stock to the Holder upon exercise of the Rights results in the Holder and the other Attribution Parties being
deemed to beneficially own, in the aggregate, more than the Beneficial Ownership Limitation of the number of outstanding shares
of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares so issued by which the Holder’s
and the other Attribution Parties’ aggregate beneficial ownership exceeds the Beneficial Ownership Limitation (the “Excess
Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to
vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time increase
(with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the Beneficial
Ownership Limitation to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase
in the Beneficial Ownership Limitation will not be effective until the sixty-first (61st) day after such notice is
delivered to the Company and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties
and not to any other holder of Rights that is not an Attribution Party of the Holder. For purposes of clarity, the shares of Common
Stock issuable pursuant to the terms of the Rights hereunder in excess of the Beneficial Ownership Limitation shall not be deemed
to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934
Act. No prior inability to exercise any Rights 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. The provisions of this paragraph shall be construed
and implemented in a manner otherwise than in strict conformity with the terms of this Section 11.8 to the extent necessary to
correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial
ownership limitation contained in this Section 11.8 or to make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor holder
of Rights.


 






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11.9
Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise
of the Rights, pursuant to the terms hereof.


 


11.10
Stock Dividends and Splits. If the Company, at any time while the Rights exist: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable
in shares of Common Stock, (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including
by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification
of shares of the Common Stock any shares of capital stock of the Company, then in each case the number of Reserved Shares issuable
upon exercise of the Rights shall be proportionately adjusted. Any adjustment made pursuant to this Section 11.10 shall become
effective immediately upon the record date for the determination of stockholders entitled to receive such dividend or distribution
(provided that if the declaration of such dividend or distribution is rescinded or otherwise cancelled, then such adjustment shall
be reversed upon notice to the Holder of the termination of such proposed declaration or distribution as to any unexercised portion
of the Rights at the time of such rescission or cancellation) and shall become effective immediately after the effective date
in the case of a subdivision, combination or re-classification.


 


11.11
Compensation for Buy-In on Failure to Timely Deliver Reserved Shares. If the Company shall fail, for any reason or for
no reason, on or prior to the applicable Share Delivery Deadline, either (x) if the Transfer Agent is not participating in the
DTC Fast Automated Securities Transfer Program, to issue and deliver to the Holder (or its designee) a certificate for the number
of shares of Common Stock to which the Holder is entitled and register such shares of Common Stock on the Company’s share
register or, (y) if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, to credit the balance
account of the Holder or the Holder’s designee with DTC for such number of shares of Common Stock to which the Holder is
entitled upon the Holder’s exercise of a Right (a “Delivery Failure”), then, in addition to all other
remedies available to the Holder, (1) the Company shall pay in cash to the Holder on each day after such Share Delivery Deadline
that the issuance of such shares of Common Stock is not timely effected an amount equal to 2% of the product of (A) the sum of
the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery Deadline and to which the Holder
is entitled, multiplied by (B) any trading price of the Common Stock selected by the Holder in writing as in effect at any time
during the period beginning on the applicable Exercise Date and ending on the applicable Share Delivery Deadline and (2) the Holder,
upon written notice to the Company, may void its Notice of Issuance with respect to, and retain or have returned (as the case
may be) any portion of the rights that has not been exercised pursuant to such Notice of Issuance, provided that the voiding of
a Notice of Issuance shall not affect the Company’s obligations to make any payments which have accrued prior to the date
of such notice pursuant to this Section 11.11 or otherwise. In addition to the foregoing, if on or prior to the Share Delivery
Deadline either (A) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the Company
shall fail to issue and deliver to the Holder (or its designee) a certificate and register such shares of Common Stock on the
Company’s share register or, (B) if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program,
the Transfer Agent shall fail to credit the balance account of the Holder or the Holder’s designee with DTC for the number
of shares of Common Stock to which the Holder is entitled upon the Holder’s exercise of Rights hereunder or pursuant to
the Company’s obligation pursuant to clause (II) below, and if on or after such Share Delivery Deadline the Holder purchases
(in an open market transaction or otherwise) shares of Common Stock corresponding to all or any portion of the number of shares
of Common Stock issuable upon such exercise that the Holder is entitled to receive from the Company and has not received from
the Company in connection with such Delivery Failure (a “Buy-In”), then, in addition to all other remedies
available to the Holder, the Company shall, within two (2) Business Days after receipt of the Holder’s request and in the
Holder’s discretion, either: (I) pay cash to the Holder in an amount equal to the Holder’s total purchase price (including
brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including, without
limitation, by any other Person in respect, or on behalf, of the Holder) (the “Buy-In Price”), at which point
the Company’s obligation to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit the
balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of shares of Common Stock
to which the Holder is entitled upon the Holder’s exercise of Rights hereunder (as the case may be) (and to issue such shares
of Common Stock) shall terminate, or (II) promptly honor its obligation to so issue and deliver to the Holder a certificate or
certificates representing such shares of Common Stock or credit the balance account of such Holder or such Holder’s designee,
as applicable, with DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s exercise
of Rights hereunder (as the case may be) and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price
over the product of (x) such number of shares of Common Stock multiplied by (y) the lowest Closing Sale Price (as defined in the
June Notes) of the Common Stock on any Trading Day during the period commencing on the date of the applicable Notice of Issuance
and ending on the date of such issuance and payment under this clause (II) (the “Buy-In Payment Amount”). Nothing
shall limit the Holder’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver
certificates representing shares of Common Stock (or to electronically deliver such shares of Common Stock) upon the exercise
of the Rights as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to any given
Delivery Failure, this Section 11.11 shall not apply to the Holder to the extent the Company has already paid such amounts in
full to such Holder with respect to such Delivery Failure, as applicable, pursuant to the analogous sections of the February Securities
Purchase Agreement.


 






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11.12
Subsequent Rights Offerings. If Section 11.10 above does not apply, if at any time the Company grants, issues or sells
any Convertible Securities, Options or rights to purchase stock, warrants, securities or other property pro rata to the record
Holders of any class of shares 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 the Rights (without regard to
any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) 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 shares 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 Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right
to such extent (or beneficial ownership of such shares of 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 Beneficial Ownership Limitation).


 


11.13
Fundamental Transaction. If, at any time while the Rights remain outstanding, a Fundamental Transaction (as defined in
the June Note) occurs, then, upon any subsequent exercise of the Rights, the Holder shall have the right to receive, for each
Reserved Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction,
at the option of the Holder (without regard to any limitation in Section 11.8 on the exercise of the Right), the number of shares
of Common Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional
consideration receivable as a result of such Fundamental Transaction by a Holder of one share of Common Stock. Upon the occurrence
of any such Fundamental Transaction, any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) shall succeed to, and be substituted for (so that from and after the date of such
Fundamental Transaction, the provisions of this Agreement and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the
obligations of the Company under this Agreement and the other Transaction Documents with the same effect as if such Successor
Entity had been named as the Company herein.


 


11.14
Notice to Allow Exercise of Right. If at any time while the Rights remain outstanding, (A) the Company shall declare a
dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring
cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all Holders of the Common
Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval
of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation
or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any
compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall
authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case,
the Company shall cause to be mailed to the Holder at least 10 calendar days prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution,
redemption, rights or warrants, or if a record is not to be taken, the date as of which the Holders of the Common Stock of record
to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such
reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date
as of which it is expected that Holders of the Common Stock of record shall be entitled to exchange their shares of the Common
Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or
share exchange; provided that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect
the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder
constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries, the Company shall
simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled
to exercise the Rights during the period commencing on the date of such notice to the effective date of the event triggering such
notice except as may otherwise be expressly set forth herein.


 






    	 	18	 



     

    

 


11.15
No Rights as Stockholder Until Exercise. Each Right does not entitle the Holder to any voting rights, dividends or other
rights as a stockholder of the Company prior to the exercise hereof.


 


11.16
Transferability. Subject to compliance with any applicable securities laws, the Rights and all rights hereunder (including,
without limitation, any registration rights) are transferable, in whole or in part, upon written assignment substantially in the
form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer of this Agreement delivered to the principal office of the Company or its designated agent. Upon
such assignment and, if required, such payment, the Company shall enter into a new agreement with the assignee or assignees, as
applicable, and this Agreement shall promptly be cancelled. Any Right, if properly assigned in accordance herewith, may be exercised
by a new Holder for the issue of Reserved Shares without having a new agreement executed.


 


12.
Miscellaneous Provisions. Section 9 of the June Securities Purchase Agreements (as amended hereby) is hereby incorporated
by reference herein, mutatis mutandis.


 


13.
Most Favored Nation. For so long as any Series A Warrants issued by the Company on December 13, 2017, Series A-1
Warrants issued by the Company on February 13, 2018 or Series A-2 Warrants (together, the “Outstanding Warrants”)
are outstanding, the Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the
date hereof, that the Company will not modify, amend, exchange, or waive any provision of the Outstanding Warrants (each a “Settlement
Document”) on terms more favorable to any Person than those of the Holder and this Agreement. For so long as any Outstanding
Warrants are outstanding, if, and whenever on or after the date hereof, the Company enters into a Settlement Document, then (i)
the Company shall provide notice thereof to the Holder immediately following the occurrence thereof and (ii) the terms and conditions
of this Agreement shall be, without any further action by the Holder or the Company, automatically amended and modified in an
economically and legally equivalent manner such that the Holder shall receive the benefit of the more favorable terms and/or conditions
(as the case may be) set forth in such Settlement Document, provided that upon written notice to the Company at any time the Holder
may elect not to accept the benefit of any such amended or modified term or condition, in which event the term or condition contained
in this Agreement shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such
amendment or modification never occurred with respect to the Holder. The provisions of this Section 13 shall apply similarly and
equally to each Settlement Document.


 






    	 	19	 



     

    

 


14.
Independent Nature of Holder's Obligations and Rights. The obligations of the Holder under this Agreement are several
and not joint with the obligations of any Other Holder, and the Holder shall not be responsible in any way for the performance
of the obligations of any Other Holder under any Other Agreement. Nothing contained herein or in any Other Agreement, and no action
taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and Other Holders as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Holder and Other Holders are in any way acting in
concert or as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement
and the Company acknowledges that, to the best of its knowledge, the Holder and the Other Holders are not acting in concert or
as a group with respect to such obligations or the transactions contemplated by this Agreement or any Other Agreement. The Company
and the Holder confirm that the Holder has independently participated in the negotiation of the transactions contemplated hereby
with the advice of its own counsel and advisors. The Holder shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any Other Holder to
be joined as an additional party in any proceeding for such purpose.


 


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remainder of the page is intentionally left blank]


 






    	 	20	 



     

    




 


IN
WITNESS WHEREOF, Holders and the Company have executed this Agreement as of the date set forth on the first page of this Agreement.


 


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


 






     

     

    

 


IN
WITNESS WHEREOF, Holders and the Company have executed this Agreement as of the date set forth on the first page of this Agreement.


 


	 	HOLDER:
	 	 	 
	 	 	 
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Title:
	 	 	 
	 	Aggregate
    number of Existing Warrant Shares* issuable upon exercise of Existing Warrants to be exchanged:
	 	 
	 	 
	 	 
	 	Aggregate
    number of Exchange Common Shares to be issued in the Exchange:
	 	 
	 	 
	 	 
	 	Aggregate
    number of Reserve Shares* issuable upon exercise of Rights (if any) to be issued in the Exchange:
	 	 
	 	 
	 	 
	 	*Calculated
    without regard to any limitations on conversion or exercise thereof


 






     

     

    

 


EXHIBIT
A


 


NOTICE
OF ISSUANCE


 


The
undersigned holder hereby exercises the rights (the “Rights”) to receive _________________ of the shares of
Common Stock (the “Reserved Shares”) of Helios and Matheson Analytics Inc., a Delaware corporation with offices
located at Empire State Building, 350 5th Avenue, New York, New York 10118 (the “Company”), established pursuant
to that certain Third Amendment and Exchange Agreement, dated June __, 2018, by and between the Company and the investor signatory
thereto (the “Exchange Agreement”). Capitalized terms used herein and not otherwise defined shall have the
respective meanings set forth in the Exchange Agreement.


 


The
Company shall deliver to Holder, or its designee or agent as specified below, __________ Reserved Shares in accordance with the
terms of the Rights. Delivery shall be made to Holder, or for its benefit, as follows:


 


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



 


	 	Issue
    to:	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 


 


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


 





	 	DTC Participant:	 
	 	 	 
	 	DTC Number:	 
	 	 	 
	 	Account Number:	 







 


Date:
_____________ __, __


 


____________________________


Name
of Registered Holder


 


	By:
    	 	 	 
	 	Name:	 	 
	 	Title:	 	 


 


Tax
ID:____________________________


 


Facsimile:__________________________


 


E-mail
Address:_____________________