Exhibit 10.10


 


Execution Version


 


THIS NOTE HAS NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS NOTE AND
THE SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.


 


COMSOVEREIGN HOLDING CORP.


 


 Amended
and Restated Senior Secured

Convertible Promissory

Note due May 27, 2023


 





	Note No. 20210527	 	$11,000,000.00


 


Dated: May 27,
2021 (the “Issuance Date”)


 


For value received, COMSOVEREIGN
HOLDING CORP., a Nevada corporation (the “Maker” or the “Company”), hereby promises to pay to the
order of Lind Global Asset Management IV, LLC, a Delaware limited liability company (together with its successors and representatives,
the “Holder”), in accordance with the terms hereinafter provided, the principal amount of ELEVEN MILLION DOLLARS ($11,000,000.00)
(the “Principal Amount”) plus any other amounts owing pursuant to the terms hereof.


 


WHEREAS, the Company has issued
to the Holder a Senior Secured Convertible Promissory Note dated May 27, 2021 (the “Issuance Date”) in the original
principal amount of $11,000,000.00 (the “Original Note”) and, as of the date hereof, the Company acknowledges and agrees
that the amount of $11,000,000.00 is outstanding thereunder and owing by the Company to the Holder thereunder;


 


WHEREAS, the Company has requested,
and the Holder has agreed, to amend and restate the Original Note on the terms and conditions set forth herein;


 


NOW, THEREFORE, the Company
and the Holder (by its acknowledgement below) each agree that on and as of August 25, 2021, (the “Restatement Closing Date”)
the Original Note is hereby amended and restated in its entirety, and shall remain in full force and effect only as expressly set forth
herein, and in consideration of the mutual covenants and agreements contained herein, the parties hereto covenant and agree as follows:


 


All payments under or pursuant
to this Amended and Restated Senior Secured Convertible Promissory Note (this “Note”) shall be made in United States
Dollars in immediately available funds to the Holder at the address of the Holder set forth in the Purchase Agreement (as hereinafter
defined) or at such other place as the Holder may designate from time to time in writing to the Maker or by wire transfer of funds to
the Holder’s account, instructions for which are attached hereto as Exhibit A. The outstanding principal balance of this
Note shall be due and payable on May 27, 2023 (the “Maturity Date”) or at such earlier time as provided herein; provided,
that the Holder, in its sole discretion, may extend the Maturity Date to any date after the original Maturity Date. In the event that
the Maturity Date shall fall on Saturday or Sunday, such Maturity Date shall be the next succeeding Business Day. All calculations made
pursuant to this Note shall be rounded down to three decimal places.


 






     


     


    

 


ARTICLE
1


 


1.1 Purchase
Agreement. This Note has been executed and delivered pursuant to the Securities Purchase Agreement, dated as of May 27, 2021, as amended
as of August 25, 2021 (as amended, and as the same may be amended from time to time, the “Purchase Agreement”), by
and between the Maker and the Holder. Capitalized terms used and not otherwise defined herein shall have the meanings set forth for such
terms in the Purchase Agreement.


 


1.2 Interest.
Except as set forth in Section 2.2, the Outstanding Principal Amount hereof shall accrue interest at an annual rate equal to six
percent (6%), which shall be payable as set forth in Section 1.3 below.


 


1.3Interest Payments.Commencing
on a day that is within five (5) Business Days the day that the Company’s Registration Statement on Form S-1 or Form S-3 is declared
effective by the SEC pursuant to Section 9.1(c) of the Purchase Agreement (the “Effectiveness Date”), but in no event
later than November 30, 2021, and then on each successive one (1) month anniversary thereof (each, a “Payment Date”)
and on the Maturity Date (or if this Note is accelerated, converted or redeemed, on the date of such acceleration, conversion or redemption,
as the case may be), until all amounts owing hereunder have been paid, (each, an “Interest Payment Date”), the Maker
shall pay to the Holder all interest that has accrued and remains unpaid on the Outstanding Principal Amount of this Note, in accordance
with the terms hereof. On the Interest Payment Dates, such monthly payments shall be made in cash or Repayment Shares, at the Holder’s
option with respect to the first Interest Payment Date upon the Holder’s advance written notice to the Company at least three (3)
days prior to the first Interest Payment Date and at the Maker’s option with respect to each Interest Payment Date thereafter upon
the Company’s advance written notice to the Holder within three (3) Business Days of the immediately preceding Interest Payment
Date (provided that if the Company does not provide such written notice within such three (3) Business Days, the applicable monthly payment
shall be made in cash); provided that the number of Repayment Shares shall be determined by dividing the accrued interest being paid in
shares of Common Stock by the Repayment Share Price (as defined below). Notwithstanding the foregoing, for the period commencing on the
Issuance Date and ending on the Effectiveness Date, all the interest payable during such period pursuant to this Section 1.3 shall accrue
and, on the day after the Effectiveness Date, the Holder shall have the option to either (i) convert all such accrued interest into shares
of Common Stock at the Repayment Share Price or (ii) be paid, in a single payment, the full amount of all the accrued interest in cash.


 


1.4 Principal
Installment Payments. Commencing on the first Payment Date and on each Payment Date thereafter, the Maker shall pay to the Holder
the outstanding Principal Amount hereunder in monthly installments, of Six Hundred Eleven Thousand One Hundred Eleven Dollars ($611,111)
(the “Monthly Payments”), subject to Section 3.1 (a) of this Agreement, until the Principal Amount has been
paid in full prior to or on the Maturity Date or, if earlier, upon acceleration, conversion or redemption of this Note in accordance with
the terms herein. The Monthly Payments shall, at the Maker’s option, be made in (i) cash (ii) Repayment Shares, or (iii) a combination
of cash and Repayment Shares; provided that the number of Repayment Shares shall be determined by dividing the Principal Amount plus accrued
interest (if any) being paid in shares of Common Stock at the Repayment Share Price. The Company must provide advance written notice to
the Holder of whether it will elect to pay a Monthly Payment in cash, Repayment Shares or a combination thereof as follows: (i) with respect
to the first Monthly Payment, at least thirty (30) days before the Payment Date, and (ii) with respect to each Monthly Payment thereafter,
within three (3) Business Days of the prior Payment Date; provided, however, that if no such notice is provided within the timeframes
set forth above, such Monthly Payments shall be made in cash.


 






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1.5Prepayment.At
any time after the Issuance Date, the Maker may repay all (but not less than all) of the Outstanding Principal Amount upon at least ten
(10) days’ written notice of the Holder (the “Prepayment Notice”). If the Maker elects to prepay this Note pursuant
to the provisions of this Section 1.5, the Holder shall have the right, upon written notice to the Maker (a “Prepayment
Conversion Notice”) within five (5) Business Days of the Holder’s receipt of a Prepayment Notice, to convert up to thirty-three
and one third percent (331/3%) of the Principal Amount (the “Maximum Amount”) at the lesser of the Repayment
Share Price or the Conversion Price (each as defined below), in accordance with the provisions of Article 3, specifying the Principal
Amount (up to the Maximum Amount) that the Holder will convert. Upon delivery of a Prepayment Notice, the Maker irrevocably and unconditionally
agrees to, within five (5) Business Days of receiving a Prepayment Conversion Notice, and if no Prepayment Conversion Notice is received,
within ten (10) Business Days of delivery of a Prepayment Notice: (i) repay the Outstanding Principal Amount minus the Principal Amount
set forth in the Prepayment Conversion Notice and (ii) issue the applicable Conversion Shares to the Holder in accordance with Article
3. The foregoing notwithstanding, the Maker may not deliver a Prepayment Notice with respect to any Outstanding Principal Amount that
is subject to a Conversion Notice delivered by the Holder in accordance with Article 3


 


1.6Delisting from a
Trading Market.If at any time the Common Stock ceases to be listed on a Trading Market, (i) the Holder may deliver a demand for
payment to the Company and, if such a demand is delivered, the Company shall, within ten (10) Business Days following receipt of the demand
for payment from the Holder, pay all of the Outstanding Principal Amount or (ii) the Holder may, at its election, after the six-month
anniversary of the Issuance Date or earlier if a Registration Statement covering the Conversion Shares has been declared effective, upon
notice to the Company in accordance with Section 5.1, convert all or a portion of the Outstanding Principal Amount and the
Conversion Price shall be adjusted to the lower of (A) the then-current Conversion Price and (A) eighty percent (80%) of the average of
the three (3) lowest daily VWAPs during the twenty (20) Trading Days prior to delivery by the Holder of its notice of conversion pursuant
to this Section 1.6.


 


1.7 Payment
on Non-Business Days. Whenever any payment to be made shall be due on a day which is not a Business Day, such payment may be due on
the next succeeding Business Day.


 


1.8 Transfer.
This Note may be transferred or sold, subject to the provisions of Section 5.8 of this Note, or pledged, hypothecated or otherwise
granted as security by the Holder.


 


1.9 Replacement.
Upon receipt of a duly executed and notarized written statement from the Holder with respect to the loss, theft or destruction of this
Note (or any replacement hereof), or, in the case of a mutilation of this Note, upon surrender and cancellation of such Note, the Maker
shall issue a new Note, of like tenor and amount, in lieu of such lost, stolen, destroyed or mutilated Note.


 


1.10 Use
of Proceeds. The Maker shall use the proceeds of this Note as set forth in the Purchase Agreement.


 






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1.11 Status
of Note and Security Interest. Other than (a) the Maker’s unsecured Indebtedness constituting Permitted Debt (as defined in
the Purchase Agreement), which is pari passu in terms of payment with the obligations of the Maker under this Note, and (b) the Maker’s
secured Indebtedness owing to Lind Global Fund II LP under the Second NPA (as defined in the Purchase Agreement), which is pari passu
with the obligations of the Maker under this Note, the obligations of the Maker under this Note shall be senior to all other existing
Indebtedness and equity of the Company. Upon any Liquidation Event (as hereinafter defined), the Holder will be entitled to receive, before
any distribution or payment is made upon, or set apart with respect to, any Indebtedness of the Maker or any class of capital stock of
the Maker, an amount equal to the Holder’s Outstanding Principal Amount, provided, if at such time there are any outstanding principal
amounts owing to Lind Global Fund II LP with respect to the Second NPA, the amount payable to the Holder shall be its pro rata share of
the total outstanding principal amount owing to the Holder and Lind Global Fund II LP with respect to the Second NPA. For purposes of
this Note, “Liquidation Event” means a liquidation pursuant to a filing of a petition for bankruptcy under applicable
law or any other insolvency or debtor’s relief, an assignment for the benefit of creditors, or a voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Maker.


 


1.12 Secured
Note. The full amount of this Note is secured by the Collateral (as defined in the Security Agreement) identified and described as
security therefor in the Security Agreement.


 


1.13 Tax
Treatment. The Maker and the Holder agree that for U.S. federal income tax purposes, and applicable state, local and non-U.S. income
tax purposes, this Note is not intended to be, and shall not be, treated as indebtedness. Neither the Maker nor the Holder shall take
any contrary position on any tax return, or in any audit, claim, investigation, inquiry or proceeding in respect of Taxes, unless otherwise
required pursuant to a final determination within the meaning of Section 1313 of the Internal Revenue Code of 1986, as amended (the “Code”),
or any analogous provision of applicable state, local or non-U.S. law.


 


ARTICLE
2


 


2.1 Events
of Default. An “Event of Default” under this Note shall mean the occurrence of any of the events defined in the
Purchase Agreement, and any of the additional events described below:


 


(a) any
default in the payment of (i) the Principal Amount hereunder when due; or (ii) liquidated damages in respect of this Note as and
when the same shall become due and payable (whether on the Maturity Date or by acceleration or otherwise);


 


(b) the
Maker shall fail to observe or perform any other covenant, condition or agreement contained in this Note or any Transaction Document;


 


(c) the
Maker’s notice to the Holder, including by way of public announcement, at any time, of its inability to comply (including for any
of the reasons described in Section 3.6(a) hereof) or its intention not to comply with proper requests for conversion of this Note
into shares of Common Stock;


 


(d) the
Maker shall fail to (i) timely deliver the shares of Common Stock as and when required in Section 3.2; or (ii) make the payment
of any fees and/or liquidated damages under this Note, the Purchase Agreement or the other Transaction Documents;


 






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(e) default
shall be made in the performance or observance of any material covenant, condition or agreement contained in the Purchase Agreement or
any other Transaction Document that is not covered by any other provisions of this Section 2.1;


 


(f) at
any time the Maker shall fail to have a sufficient number of shares of Common Stock authorized, reserved and available for issuance to
satisfy the potential conversion in full (disregarding for this purpose any and all limitations of any kind on such conversion) of this
Note or upon exercise of the Warrant;


 


(g) any
representation or warranty made by the Maker or any of its Subsidiaries herein or in the Purchase Agreement, the Warrant or any other
Transaction Document shall prove to have been false or incorrect or breached in a material respect on the date as of which made;


 


(h) unless
otherwise approved in writing in advance by the Holder, the Maker shall, or shall announce an intention to pursue or consummate a Change
of Control, or a Change of Control shall be consummated, or the Maker shall enter into any agreement, understanding or arrangement with
respect to any Change of Control;


 


(i) the
Maker or any of its Subsidiaries shall (A) default in any payment of any amount or amounts of principal of or interest (if any) on any
Indebtedness (other than the Indebtedness hereunder), the aggregate principal amount of which Indebtedness is in excess of $500,000 that
will permit the holder or holders of such Indebtedness to become due prior to its stated maturity or (B) default in the observance or
performance of any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition exist, the effect of which default or other event or condition
is to cause, or to permit the holder or holders or beneficiary or beneficiaries of such Indebtedness to cause with the giving of notice
if required, such Indebtedness to become due prior to its stated maturity;


 


(j) the
Maker or any of its Subsidiaries shall: (i) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property or assets; (ii) make a general assignment for the benefit
of its creditors; (iii) commence a voluntary case under the United States Bankruptcy Code (as now or hereafter in effect) or under the
comparable laws of any jurisdiction (foreign or domestic); (iv) file a petition seeking to take advantage of any bankruptcy, insolvency,
moratorium, reorganization or other similar law affecting the enforcement of creditors’ rights generally; (v) acquiesce in writing
to any petition filed against it in an involuntary case under the United States Bankruptcy Code (as now or hereafter in effect) or under
the comparable laws of any jurisdiction (foreign or domestic); (vi) issue a notice of bankruptcy or winding down of its operations or
issue a press release regarding same; or (vii) take any action under the laws of any jurisdiction (foreign or domestic) analogous
to any of the foregoing;


 


(k) a
proceeding or case shall be commenced in respect of the Maker or any of its Subsidiaries, without its application or consent, in any court
of competent jurisdiction, seeking: (i) the liquidation, reorganization, moratorium, dissolution, winding up, or composition or readjustment
of its debts; (ii) the appointment of a trustee, receiver, custodian, liquidator or the like of it or of all or any substantial part of
its assets in connection with the liquidation or dissolution of the Maker or any of its Subsidiaries; or (iii) similar relief in respect
of it under any law providing for the relief of debtors, and such proceeding or case described in clause (i), (ii) or (iii) shall continue
undismissed, or unstayed and in effect, for a period of forty-five (45) days or any order for relief shall be entered in an involuntary
case under United States Bankruptcy Code (as now or hereafter in effect) or under the comparable laws of any jurisdiction (foreign or
domestic) against the Maker or any of its Subsidiaries or action under the laws of any jurisdiction (foreign or domestic) analogous to
any of the foregoing shall be taken with respect to the Maker or any of its Subsidiaries and shall continue undismissed, or unstayed and
in effect for a period of forty-five (45) days;


 






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(l) one
or more final judgments or orders for the payment of money aggregating in excess of $500,000 (or its equivalent in the relevant currency
of payment) are rendered against one or more of the Company and its Subsidiaries, which is not paid or vacated within 30 days;


 


(m) the
failure of the Maker to instruct its transfer agent to remove any legends from shares of Common Stock and issue such unlegended certificates
to the Holder within three (3) Trading Days of the Holder’s request so long as the Holder has provided reasonable assurances to
the Maker that such shares of Common Stock can be sold pursuant to Rule 144 or any other applicable exemption;


 


(n) the
Maker’s shares of Common Stock are no longer publicly traded or cease to be listed on the Trading Market or, after the six month
anniversary of the Issuance Date, any Investor Shares may not be immediately resold under Rule 144 without restriction on the number of
shares to be sold or manner of sale, unless such Investor Shares have been registered for resale under the 1933 Act and may be sold without
restriction;


 


(o) the
Maker consummates a “going private” transaction and as a result the Common Stock is no longer registered under Sections 12(b)
or 12(g) of the 1934 Act;


 


(p) there
shall be any SEC or judicial stop trade order or trading suspension stop-order or any restriction in place with the transfer agent for
the Common Stock restricting the trading of such Common Stock;


 


(q) the
Depository Trust Company places any restrictions on transactions in the Common Stock or the Common Stock is no longer tradeable through
the Depository Trust Company Fast Automated Securities Transfer program;


 


(r) the
Company’s Market Capitalization is below $50 million for ten (10) consecutive days;


 


(s) the
occurrence of a Material Adverse Effect in respect of the Maker, or the Maker and its Subsidiaries taken as a whole;


 


(t) the
Company shall make or be required to make any cash payments whatsoever with respect to amounts owing on the Skyline Partners Notes (as
such term is defined in the Purchase Agreement); or


 


(u) the
Registration Statement on Form S-1 or S-3 pursuant to Section 9.1(c) of the Purchase Agreement is no longer effective.


 






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2.2 Remedies
Upon an Event of Default.


 


(a) Upon
the occurrence of any Event of Default that has not been remedied within (i) two (2) Business Days following the Company becoming aware
of such Event of Default or the Holder notifying the Company in writing of the occurrence of such Event of Default, whichever is earlier,
for an Event of Default described in Section 2.1(a), 2.1(c), 2.1(d), 2.1(i), or 2.1(m) or for an Event
of Default occurring by the Company’s failure to comply with Section 3.2 of this Note, or (ii) ten (10) Business Days following
the Company becoming aware of such Event of Default or the Holder notifying the Company in writing of the occurrence of such Event of
Default, whichever is earlier, for all other Events of Default, provided, however, that there shall be no cure period for
an Event of Default described in Section 2.1(i), 2.1(k) or 2.1(t), the Maker shall be obligated to pay to the Holder
the Mandatory Default Amount, which Mandatory Default Amount shall be earned by the Holder on the date the Event of Default giving rise
thereto occurs and shall be due and payable on the earlier to occur of the Maturity Date, upon conversion, redemption or prepayment of
this Note or the date on which all amounts owing hereunder have been accelerated in accordance with the terms hereof.


 


(b) Upon
the occurrence of any Event of Default of which the Maker becomes aware, the Maker shall, as promptly as possible but in any event within
one (1) Business Day of the Maker becoming aware of the occurrence of such Event of Default, notify the Holder of the occurrence of such
Event of Default, describing the event or factual situation giving rise to the Event of Default and specifying the relevant subsection
or subsections of Section 2.1 hereof under which such Event of Default has occurred.


 


(c) If
an Event of Default shall have occurred and shall not have been remedied within (i) three (3) Business Days following the Company becoming
aware of such Event of Default or the Holder notifying the Company in writing of the occurrence of such Event of Default, whichever is
earlier, for an Event of Default described in Section 2.1(a), 2.1(c), 2.1(d), 2.1(i), or 2.1(m) or
for an Event of Default occurring by the Company’s failure to comply with Section 3.2 of this Note, or (ii) ten (10) Business
Days following the Company becoming aware of such Event of Default or the Holder notifying the Company in writing of the occurrence of
such Event of Default, whichever is earlier, for all other Events of Default, provided, however, that there shall be no
cure period for an Event of Default described in Section 2.1(i), 2.1(k), or 2.1(t). The Holder may at any time at
its option (1) declare the Mandatory Default Amount due and payable, and thereupon, the same shall be accelerated and so due and payable,
without presentment, demand, protest or notice, all of which are hereby expressly unconditionally and irrevocably waived by the Maker
and (2) exercise all other rights and remedies available to it under the Transaction Documents; provided, however, that (x) upon
the occurrence of an Event of Default described above, the Holder, in its sole and absolute discretion, may: (a) from time-to-time demand
that all or a portion of the Outstanding Principal Amount be converted into shares of Common Stock at the lower of (i) the then-current
Conversion Price and (ii) eighty-percent (80%) of the average of the three (3) lowest daily VWAPs during the twenty (20) Trading Days
prior to the delivery by the Holder of the applicable notice of conversion or (b) exercise or otherwise enforce any one or more of the
Holder’s rights, powers, privileges, remedies and interests under this Note, the Purchase Agreement, the other Transaction Documents
or applicable law and (y) upon the occurrence of an Event of Default described in clauses (j) or (k) above, the Mandatory Default Amount
shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived
by the Maker. No course of delay on the part of the Holder shall operate as a waiver thereof or otherwise prejudice the rights of the
Holder. No remedy conferred hereby shall be exclusive of any other remedy referred to herein or now or hereafter available at law, in
equity, by statute or otherwise.


 






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ARTICLE
3


 


3.1 Conversion.


 


(a) Conversion.
At any time following the Effectiveness Date, this Note shall be convertible (in whole or in part), at the option of the Holder, into
such number of fully paid and non-assessable shares of Common Stock as is determined by dividing (x) that portion of the Outstanding Principal
Amount that the Holder elects to convert (the “Conversion Amount”) by (y) the Conversion Price then in effect on the
date on which the Holder delivers a notice of conversion, in substantially the form attached hereto as Exhibit B (the “Conversion
Notice”), in accordance with Section 5.1 to the Maker. The Holder shall deliver this Note to the Maker at the address
designated in the Purchase Agreement at such time that this Note is fully converted. With respect to partial conversions of this Note,
the Maker shall keep written records of the amount of this Note converted as of the date of such conversion (each, a “Conversion
Date”). Any amounts of the Outstanding Principal Amount converted hereunder shall be credited to the next scheduled Monthly
Payment, or if any amount of the Outstanding Principal Amount converted hereunder exceeds the next scheduled Monthly Payment, future Monthly
Payments shall be credited, as applicable.


 


(b) Conversion
Price. The “Conversion Price” means $3.00, and shall be subject to adjustment as provided herein.


 


3.2 Delivery
of Conversion Shares. As soon as practicable after any conversion in accordance with this Note and in any event within two (2) Trading
Days thereafter (such date, the “Share Delivery Date”), the Maker shall, at its expense, cause to be issued in the
name of and delivered to the Holder, or as the Holder may direct, a certificate or certificates evidencing the number of fully paid and
non-assessable shares of Common Stock to which the Holder shall be entitled on such conversion (the “Conversion Shares”),
in such denominations as may be requested by the Holder, which certificate or certificates shall be free of restrictive and trading legends
(except for any such legends as may be required under the 1933 Act). In lieu of delivering physical certificates for the shares of Common
Stock issuable upon any conversion of this Note, provided the Company’s transfer agent is participating in the Depository Trust
Company (“DTC”) Fast Automated Securities Transfer program or a similar program, upon request of the Holder, the Company
shall cause its transfer agent to electronically transmit such shares of Common Stock issuable upon conversion of this Note to the Holder
(or its designee), by crediting the account of the Holder’s (or such designee’s) broker with DTC through its Deposit Withdrawal
Agent Commission system (provided that the same time periods herein as for stock certificates shall apply) as instructed by the Holder
(or its designee).


 


3.3 Ownership
Cap. Notwithstanding anything to the contrary contained herein, the Holder shall not be entitled to receive shares representing Equity
Interests upon conversion of this Note to the extent (but only to the extent) that such exercise or receipt would cause the Holder Group
(as defined below) to become, directly or indirectly, a “beneficial owner” (within the meaning of Section 13(d) of the 1934
Act and the rules and regulations promulgated thereunder) of a number of Equity Interests of a class that is registered under the 1934
Act which exceeds the Maximum Percentage (as defined below) of the Equity Interests of such class that are outstanding at such time. Any
purported delivery of Equity Interests in connection with the conversion of this Note prior to the termination of this restriction in
accordance herewith shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the Holder
Group becoming the beneficial owner of more than the Maximum Percentage of the Equity Interests of a class that is registered under the
1934 Act that is outstanding at such time. If any delivery of Equity Interests owed to the Holder following conversion of this Note is
not made, in whole or in part, as a result of this limitation, the Company’s obligation to make such delivery shall not be extinguished
and the Company shall deliver such Equity Interests as promptly as practicable after the Holder gives notice to the Company that such
delivery would not result in such limitation being triggered or upon termination of the restriction in accordance with the terms hereof.
To the extent limitations contained in this Section 3.3 apply, the determination of whether this Note is convertible and of which
portion of this Note is convertible shall be the sole responsibility and in the sole determination of the Holder, and the submission of
a notice of conversion shall be deemed to constitute the Holder’s determination that the issuance of the full number of Conversion
Shares requested in the notice of conversion is permitted hereunder, and the Company shall not have any obligation to verify or confirm
the accuracy of such determination. For purposes of this Section 3.3, (i) the term “Maximum Percentage”
shall mean 4.99%; provided, that if at any time after the date hereof the Holder Group beneficially owns in excess of 4.99% of any class
of Equity Interests in the Company that is registered under the 1934 Act, then the Maximum Percentage shall automatically increase to
9.99% so long as the Holder Group owns in excess of 4.99% of such class of Equity Interests (and shall, for the avoidance of doubt, automatically
decrease to 4.99% upon the Holder Group ceasing to own in excess of 4.99% of such class of Equity Interests); and (ii) the term “Holder
Group” shall mean the Holder plus any other Person with which the Holder is considered to be part of a group under Section 13
of the 1934 Act or with which the Holder otherwise files reports under Sections 13 and/or 16 of the 1934 Act. In determining the
number of Equity Interests of a particular class outstanding at any point in time, the Holder may rely on the number of outstanding Equity
Interests of such class as reflected in (x) the Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q
filed with the Securities and Exchange Commission, as the case may be, (y) a more recent public announcement by the Company or (z) a more
recent notice by the Company or its transfer agent to the Holder setting forth the number of Equity Interests of such class then outstanding.
For any reason at any time, upon written or oral request of the Holder, the Company shall, within one (1) Business Day of such request,
confirm orally and in writing to the Holder the number of Equity Interests of any class then outstanding. The provisions of this Section
3.3 shall be construed, corrected and implemented in a manner so as to effectuate the intended beneficial ownership limitation herein
contained.


 






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3.4 Adjustment
of Conversion Price.


 


(a) Until
the Note has been paid in full or converted in full, the Conversion Price shall be subject to adjustment from time to time as follows
(but shall not be increased, other than pursuant to Section 3.4(a)(i) hereof):


 


(i) Adjustments
for Stock Splits and Combinations. If the Maker shall at any time or from time to time after the Closing Date (but whether before
or after the Issuance Date) effect a split of the outstanding Common Stock, the applicable Conversion Price in effect immediately prior
to the stock split shall be proportionately decreased. If the Maker shall at any time or from time to time after the Closing Date (but
whether before or after the Issuance Date), combine the outstanding shares of Common Stock, the applicable Conversion Price in effect
immediately prior to the combination shall be proportionately increased. Any adjustments under this Section 3.4(a)(i) shall be
effective at the close of business on the date the stock split or combination occurs.


 


(ii) Adjustments
for Certain Dividends and Distributions. If the Maker shall at any time or from time to time after the Closing Date (but whether before
or after the Issuance Date) make or issue or set a record date for the determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in shares of Common Stock, then, and in each event, the applicable Conversion Price in effect immediately
prior to such event shall be decreased as of the time of such issuance or, in the event such record date shall have been fixed, as of
the close of business on such record date, by multiplying the applicable Conversion Price then in effect by a fraction:


 


(1) the
numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance
or the close of business on such record date; and


 


(2) the
denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such
issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or
distribution.


 


(iii) Adjustment
for Other Dividends and Distributions. If the Maker shall at any time or from time to time after the Closing Date (but whether before
or after the Issuance Date) make or issue or set a record date for the determination of holders of Common Stock entitled to receive a
dividend or other distribution payable in other than shares of Common Stock, then, and in each event, an appropriate revision to the applicable
Conversion Price shall be made and provision shall be made (by adjustments of the Conversion Price or otherwise) so that the Holder of
this Note shall receive upon conversions thereof, in addition to the number of shares of Common Stock receivable thereon, the number of
securities of the Maker or other issuer (as applicable) or other property that it would have received had this Note been converted into
Common Stock in full (without regard to any conversion limitations herein) on the date of such event and had thereafter, during the period
from the date of such event to and including the Conversion Date, retained such securities (together with any distributions payable thereon
during such period) or assets, giving application to all adjustments called for during such period under this Section 3.4(a)(iii)
with respect to the rights of the holders of this Note; provided, however, that if such record date shall have been fixed and such
dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Conversion Price shall be adjusted
pursuant to this paragraph as of the time of actual payment of such dividends or distributions.


 






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(iv) Adjustments
for Reclassification, Exchange or Substitution. If the Common Stock at any time or from time to time after the Closing Date (but whether
before or after the Issuance Date) shall be changed to the same or different number of shares or other securities of any class or classes
of stock or other property, whether by reclassification, exchange, substitution or otherwise (other than by way of a stock split or combination
of shares or stock dividends provided for in Sections 3.4(a)(i), (ii) and (iii) hereof, or a reorganization, merger, consolidation,
or sale of assets provided for in Section 3.4(a)(v) hereof), then, and in each event, an appropriate revision to the Conversion
Price shall be made and provisions shall be made (by adjustments of the Conversion Price or otherwise) so that the Holder shall have the
right thereafter to convert this Note into the kind and amount of shares of stock or other securities or other property receivable upon
reclassification, exchange, substitution or other change, by holders of the number of shares of Common Stock into which such Note might
have been converted immediately prior to such reclassification, exchange, substitution or other change, all subject to further adjustment
as provided herein.


 


(v) Adjustments
for Issuance of Additional Shares of Common Stock. In the event the Maker shall at any time or from time to time after the Closing
Date (but whether before or after the Issuance Date) issue or sell any additional shares of Common Stock (“Additional Shares
of Common Stock”), other than (A) as provided in this Note (including the foregoing subsections (i) through (iv) of this Section
3.4(a)), pursuant to any Equity Plan (including pursuant to Common Stock Equivalents granted or issued under any Equity Plan), (B)
pursuant to Common Stock Equivalents (as defined below) granted or issued prior to the Closing Date, (C) Exempted Securities, or (D) pursuant
to the terms of this Note, in any case, at an effective price per share that is less than the Conversion Price then in effect
or without consideration, then the Conversion Price upon each such issuance shall be reduced to a price equal to the consideration per
share paid for such Additional Shares of Common Stock. For purposes of clarification, the amount of consideration received for such Additional
Shares of Common Stock shall not include the value of any additional securities or other rights received in connection with such issuance
of Additional Shares of Common Stock (i.e. warrants, rights of first refusal or other similar rights).


 


(vi) Issuance,
Amendment or Adjustment of Common Stock Equivalents. Except for Exempted Securities, if (x) the Maker, at any time after the Closing
Date (but whether before or after the Issuance Date), shall issue any securities convertible into or exercisable or exchangeable for,
directly or indirectly, Common Stock (“Convertible Securities”), or any rights or warrants or options to purchase any
such Common Stock or Convertible Securities, other than Common Stock Equivalents granted or issued under any Equity Plan (collectively
with the Convertible Securities, the “Common Stock Equivalents”) and the price per share for which shares of Common
Stock may be issuable pursuant to any such Common Stock Equivalent shall be less than the applicable Conversion Price then
in effect, or (y) the price per share for which shares of Common Stock may be issuable under any Common Stock Equivalents is amended or
adjusted, pursuant to the terms of such Common Stock Equivalents or otherwise, and such price as so amended or adjusted shall be less
than the applicable Conversion Price in effect at the time of such amendment or adjustment, then, in each such case (x) or (y), the applicable
Conversion Price upon each such issuance or amendment or adjustment shall be adjusted as provided in subsection (vi) of this Section
3.4(a) as if the maximum number of shares of Common Stock issuable upon conversion, exercise or exchange of such Common Stock Equivalents
had been issued on the date of such issuance or amendment or adjustment.


 






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(vii) Consideration
for Stock. In case any shares of Common Stock or any Common Stock Equivalents shall be issued or sold:


 


(1) in
connection with any merger or consolidation in which the Maker is the surviving corporation (other than any consolidation or merger in
which the previously outstanding shares of Common Stock of the Maker shall be changed to or exchanged for the stock or other securities
of another corporation), the amount of consideration therefor shall be, deemed to be the fair value, as determined reasonably and in good
faith by the Board of Directors of the Maker and approved by the Holder, of such portion of the assets and business of the nonsurviving
corporation as such Board of Directors may determine to be attributable to such shares of Common Stock, Convertible Securities, rights
or warrants or options, as the case may be; or


 


(2) in
the event of any consolidation or merger of the Maker in which the Maker is not the surviving corporation or in which the previously outstanding
shares of Common Stock of the Maker shall be changed into or exchanged for the stock or other securities of another corporation or other
property, or in the event of any sale of all or substantially all of the assets of the Maker for stock or other securities or other property
of any corporation, the Maker shall be deemed to have issued shares of its Common Stock, at a price per share equal to the valuation of
the Maker’s Common Stock based on the actual exchange ratio on which the transaction was predicated, as applicable, and the fair
market value on the date of such transaction of all such stock or securities or other property of the other corporation. If any such calculation
results in adjustment of the applicable Conversion Price, or the number of shares of Common Stock issuable upon conversion of the Note,
the determination of the applicable Conversion Price or the number of shares of Common Stock issuable upon conversion of the Note immediately
prior to such merger, consolidation or sale, shall be made after giving effect to such adjustment of the number of shares of Common Stock
issuable upon conversion of the Note. In the event Common Stock is issued with other shares or securities or other assets of the Maker
for consideration which covers both, the consideration computed as provided in this Section 3.4(a)(vii) shall be allocated among
such securities and assets as determined in good faith by the Board of Directors of the Maker, and approved by the Holder.


 


(viii) Record
Date. In case the Maker shall take record of the holders of its Common Stock for the purpose of entitling them to subscribe for or
purchase Common Stock or Convertible Securities, then the date of the issue or sale of the shares of Common Stock shall be deemed to be
such record date.


 


(ix) No
Adjustment for Issuances of Common Stock Pursuant to this Note. Notwithstanding anything to the contrary in this Section 3.4(a), no
adjustment to the Conversion Price shall be made as a result of any issuance of shares of Common Stock in respect of principal, interest,
penalty payments or otherwise pursuant to the terms of this Note or the promissory note issued pursuant to the Second NPA.


 


(b) No
Impairment. The Maker shall not, by amendment of its Restated Articles 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 to be observed or performed hereunder by the Maker, but will at all times in good faith assist in the
carrying out of all the provisions of this Section 3.4 and in the taking of all such action as may be necessary or appropriate
in order to protect the conversion rights of the Holder against impairment. In the event the Holder shall elect to convert this Note as
provided herein, the Maker cannot refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder
has been engaged in any violation of law, violation of an agreement to which the Holder is a party or for any reason whatsoever, unless,
an injunction from a court, or notice, restraining and or adjoining conversion of this Note shall have issued and the Maker posts a surety
bond for the benefit of the Holder in an amount equal to one hundred fifty percent (150%) of the Principal Amount of the Note the Holder
has elected to convert, which bond shall remain in effect until the completion of arbitration/litigation of the dispute and the proceeds
of which shall be payable to the Holder (as liquidated damages) in the event it obtains judgment.


 






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(c) Certificates
as to Adjustments. Upon occurrence of each adjustment or readjustment of the Conversion Price or number of shares of Common Stock
issuable upon conversion of this Note pursuant to this Section 3.4, the Maker at its expense shall promptly compute such adjustment
or readjustment in accordance with the terms hereof and furnish to the Holder a certificate setting forth such adjustment and readjustment,
showing in detail the facts upon which such adjustment or readjustment is based. The Maker shall, upon written request of the Holder,
at any time, furnish or cause to be furnished to the Holder a like certificate setting forth such adjustments and readjustments, the applicable
Conversion Price in effect at the time, and the number of shares of Common Stock and the amount, if any, of other securities or property
which at the time would be received upon the conversion of this Note. Notwithstanding the foregoing, the Maker shall not be obligated
to deliver a certificate unless such certificate would reflect an increase or decrease of at least one percent (1%) of such adjusted amount.


 


(d) Issue
Taxes. The Maker shall pay any and all issue and other taxes, excluding federal, state or local income taxes, that may be payable
in respect of any issue or delivery of shares of Common Stock on conversion of this Note pursuant thereto; provided, however, that
the Maker shall not be obligated to pay any transfer taxes resulting from any transfer requested by the Holder in connection with any
such conversion.


 


(e) Fractional
Shares. No fractional shares of Common Stock shall be issued upon conversion of this Note. In lieu of any fractional shares to which
the Holder would otherwise be entitled, the Maker shall pay cash equal such fractional shares multiplied by the Conversion Price then
in effect.


 


(f) Reservation
of Common Stock. The Maker shall at all times while this Note shall be outstanding, reserve and keep available out of its authorized
but unissued Common Stock, such number of shares of Common Stock as shall from time to time be sufficient to effect the conversion of
this Note (disregarding for this purpose any and all limitations of any kind on such conversion). The Maker shall, from time to time,
increase the authorized number of shares of Common Stock or take other effective action if at any time the unissued number of authorized
shares shall not be sufficient to satisfy the Maker’s obligations under this Section 3.4(f).


 


(g) Regulatory
Compliance. If any shares of Common Stock to be reserved for the purpose of conversion of this Note require registration or listing
with or approval of any governmental authority, stock exchange or other regulatory body under any federal or state law or regulation or
otherwise before such shares may be validly issued or delivered upon conversion, the Maker shall, at its sole cost and expense, in good
faith and as expeditiously as possible, secure such registration, listing or approval, as the case may be.


 


(h) Effect
of Events Prior to the Issuance Date. If the Issuance Date of this Note is after the Closing Date, then, if the Conversion Price or
any other right of the Holder of this Note would have been adjusted or modified by operation of any provision of this Note had this Note
been issued on the Closing Date, such adjustment or modification shall be deemed to apply to this Note as of the Issuance Date as if this
Note had been issued on the Closing Date.


 






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3.5 Prepayment
Following a Change of Control.


 


(a) Mechanics
of Prepayment at Option of Holder in Connection with a Change of Control. No sooner than fifteen (15) days prior to entry into an
agreement for a Change of Control nor later than ten (10) days prior to the consummation of a Change of Control, but not prior to the
public announcement of such Change of Control, the Maker shall deliver written notice (“Notice of Change of Control”)
to the Holder. At any time after receipt of a Notice of Change of Control (or, in the event a Notice of Change of Control is not delivered
at least ten (10) days prior to a Change of Control, at any time within ten (10) days prior to a Change of Control), the Holder may require
the Maker to prepay, effective immediately prior to the consummation of such Change of Control, an amount equal to 105% of the Outstanding
Principal Amount(the “COC Repayment Price”), by delivering written notice thereof (“Notice of Prepayment at
Option of Holder Upon Change of Control”) to the Maker.


 


(b) Payment
of COC Repayment Price. Upon the Maker’s receipt of a Notice(s) of Prepayment at Option of Holder Upon Change of Control from
the Holder, the Maker shall deliver the COC Repayment Price to the Holder immediately prior to the consummation of the Change of Control;
provided that the Holder’s original Note shall have been so delivered to the Maker.


 


3.6 Inability
to Fully Convert.


 


(a) Holder’s
Option if Maker Cannot Fully Convert. If, upon the Maker’s receipt of a Conversion Notice or as otherwise required, under this
Note, including with respect to repayment of principal in shares of Common Stock as permitted under this Note, the Maker cannot issue
shares of Common Stock for any reason, including, without limitation, because the Maker (x) does not have a sufficient number of shares
of Common Stock authorized and available or (y) is otherwise prohibited by applicable law or by the rules or regulations of any stock
exchange, interdealer quotation system or other self-regulatory organization with jurisdiction over the Maker or any of its securities
from issuing all of the Common Stock which is to be issued to the Holder pursuant to this Note, then the Maker shall issue as many shares
of Common Stock as it is able to issue and, with respect to the unconverted portion of this Note or with respect to any shares of Common
Stock not timely issued in accordance with this Note, the Holder, solely at Holder’s option, can elect to:


 


(i) require
the Maker to prepay that portion of this Note for which the Maker is unable to issue Common Stock or for which shares of Common Stock
were not timely issued (the “Mandatory Prepayment”) at a price equal to the number of shares of Common Stock that the
Maker is unable to issue multiplied by the VWAP on the date of the Conversion Notice (the “Mandatory Prepayment Price”);


 


(ii) void
its Conversion Notice and retain or have returned, as the case may be, this Note that was to be converted pursuant to the Conversion Notice
(provided that the Holder’s voiding its Conversion Notice shall not affect the Maker’s obligations to make any payments which
have accrued prior to the date of such notice); or


 


(iii) defer
issuance of the applicable Conversion Shares until such time as the Maker can legally issue such shares; provided, that the Principal
Amount underlying such Conversion Shares shall remain outstanding until the delivery of such Conversion Shares; provided, further, that
if the Holder elects to defer the issuance of the Conversion Shares, it may exercise its rights under either clause (i) or (ii) above
at any time prior to the issuance of the Conversion Shares upon two (2) Business Days’ notice to the Maker.


 






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(b) Mechanics
of Fulfilling Holder’s Election. The Maker shall immediately send to the Holder, upon receipt of a Conversion Notice from the
Holder, which cannot be fully satisfied as described in Section 3.6(a) above, a notice of the Maker’s inability to fully
satisfy the Conversion Notice (the “Inability to Fully Convert Notice”). Such Inability to Fully Convert Notice shall
indicate (i) the reason why the Maker is unable to fully satisfy the Holder’s Conversion Notice; and (ii) the amount of this Note
which cannot be converted. The Holder shall notify the Maker of its election pursuant to Section 3.6(a) above by delivering written
notice to the Maker (“Notice in Response to Inability to Convert”).


 


(c) Payment
of Mandatory Prepayment Price. If the Holder shall elect to have its Note prepaid pursuant to Section 3.6(a)(i) above, the
Maker shall pay the Mandatory Prepayment Price to the Holder within five (5) Business Days of the Maker’s receipt of the Holder’s
Notice in Response to Inability to Convert; provided that prior to the Maker’s receipt of the Holder’s Notice in Response
to Inability to Convert the Maker has not delivered a notice to the Holder stating, to the satisfaction of the Holder, that the event
or condition resulting in the Mandatory Prepayment has been cured and all Conversion Shares issuable to the Holder can and will be delivered
to the Holder in accordance with the terms of this Note. If the Maker shall fail to pay the applicable Mandatory Prepayment Price to the
Holder on the date that is one (1) Business Day following the Maker’s receipt of the Holder’s Notice in Response to Inability
to Convert, in addition to any remedy the Holder may have under this Note and the Purchase Agreement, such unpaid amount shall bear interest
at the rate of two percent (2%) per month (prorated for partial months) until paid in full. Until the full Mandatory Prepayment Price
is paid in full to the Holder, the Holder may (i) void the Mandatory Prepayment with respect to that portion of the Note for which the
full Mandatory Prepayment Price has not been paid and (ii) receive back such Note.


 


(d) No
Rights as Stockholder. Nothing contained in this Note shall be construed as conferring upon the Holder, prior to the conversion of
this Note, the right to vote or to receive dividends or to consent or to receive notice as a stockholder in respect of any meeting of
stockholders for the election of directors of the Maker or of any other matter, or any other rights as a stockholder of the Maker.


 


ARTICLE
4


 


4.1 Covenants.
For so long as any Note is outstanding, without the prior written consent of the Holder:


 


(a) Compliance
with Transaction Documents. The Maker shall, and shall cause its Subsidiaries to, comply with its obligations under this Note and
the other Transaction Documents.


 


(b) Payment
of Taxes, Etc. The Maker shall, and shall cause each of its Subsidiaries to, promptly pay and discharge, or cause to be paid and discharged,
when due and payable, all lawful taxes, assessments and governmental charges or levies imposed upon the income, profits, property or business
of the Maker and the Subsidiaries, except for such failures to pay that, individually or in the aggregate, have not had and would not
reasonably be expected to have a Material Adverse Effect; provided, however , that any such tax, assessment, charge or levy need not be
paid if the validity thereof shall currently be contested in good faith by appropriate proceedings and if the Maker or such Subsidiaries
shall have set aside on its books adequate reserves with respect thereto, and provided, further, that the Maker and such Subsidiaries
will pay all such taxes, assessments, charges or levies forthwith upon the commencement of proceedings to foreclose any lien which may
have attached as security therefor.


 


(c) Corporate
Existence. The Maker shall, and shall cause each of its Subsidiaries to, maintain in full force and effect its corporate existence,
rights and franchises and all licenses and other rights to use property owned or possessed by it and reasonably deemed to be necessary
to the conduct of its business.


 


(d) Investment
Company Act. The Maker shall conduct its businesses in a manner so that it will not become subject to, or required to be registered
under, the Investment Company Act of 1940, as amended.


 






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(e) Sale
of Collateral; Liens. From the date hereof until the full release of the security interest in the Collateral, (i) the Maker shall
not sell, lease, transfer or otherwise dispose of any of the Collateral, or attempt or contract to do so, other than sales of inventory
in the ordinary course of business consistent with past practices; and (ii) the Maker shall not, directly or indirectly, create, permit
or suffer to exist, and shall defend the Collateral against and take such other action as is necessary to remove, any lien, security interest
or other encumbrance on the Collateral (except for the pledge, assignment and security interest created under the Security Agreement and
Permitted Liens (as defined in the Security Agreement)).


 


(f) Prohibited
Transactions. The Company hereby covenants and agrees not to enter into any Prohibited Transactions until thirty (30) days after such
time as this Note has been converted into Conversion Shares or repaid in full.


 


(g) Repayment
of This Note. If the Company or any Subsidiary issues any debt other than the Permitted Debt, including any subordinated debt or convertible
debt (other than the Note), or any Preferred Stock, other than Exempted Securities, unless otherwise waived in writing by and at the discretion
of the Holder, the Company will immediately utilize the proceeds of such issuance (or cause such Subsidiary to immediately utilize the
proceeds of such issuance) to repay the Note. If the Company issues any Equity Interests for aggregate proceeds to the Company of greater
than $20,000,000, excluding offering costs or other expenses, unless otherwise waived in writing by and at the discretion of the Holder,
the Company will direct 20% of such proceeds from such issuance to repay this Note, which repayment shall be without premium or penalty.


 


4.2 Set-Off.
This Note shall be subject to the set-off provisions set forth in the Purchase Agreement.


 


ARTICLE
5


 


5.1 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via email
at the email address specified in this Section prior to 5:00 p.m. (New York time) on a Business Day, (b) the next Business Day after the
date of transmission, if such notice or communication is delivered via email at the email address specified in this Section on a day that
is not a Business Day or later than 5:00 p.m. (New York time) on any date and earlier than 11:59 p.m. (New York time) on such date, (c)
the Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon actual receipt
by the party to whom such notice is required to be given. The addresses for notice shall be as set forth in the Purchase Agreement.


 


5.2 Governing
Law. This Agreement shall be governed by and construed in accordance with the Laws of the State of New York, without reference to
principles of conflict of laws or choice of laws. This Note shall not be interpreted or construed with any presumption against the party
causing this Note to be drafted.


 


5.3 Headings.
Article and section headings in this Note are included herein for purposes of convenience of reference only and shall not constitute a
part of this Note for any other purpose.


 


5.4 Remedies,
Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies provided in this Note shall be cumulative and in
addition to all other remedies available under this Note, at law or in equity (including, without limitation, a decree of specific performance
and/or other injunctive relief), no remedy contained herein shall be deemed a waiver of compliance with the provisions giving rise to
such remedy and nothing herein shall limit the Holder’s right to pursue actual damages for any failure by the Maker to comply with
the terms of this Note. Amounts set forth or provided for herein with respect to payments, conversion and the like (and the computation
thereof) shall be the amounts to be received by the holder thereof and shall not, except as expressly provided herein, be subject to any
other obligation of the Maker (or the performance thereof). The Maker acknowledges that a breach by it of its obligations hereunder will
cause irreparable and material harm to the Holder and that the remedy at law for any such breach would be inadequate. Therefore, the Maker
agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available rights
and remedies, at law or in equity, to equitable relief, including but not limited to an injunction restraining any such breach or threatened
breach, without the necessity of showing economic loss and without any bond or other security being required.


 






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5.5 Enforcement
Expenses. The Maker agrees to pay all costs and expenses of enforcement of this Note, including, without limitation, reasonable attorneys’
fees and expenses.


 


5.6 Binding
Effect. The obligations of the Maker and the Holder set forth herein shall be binding upon the successors and assigns of each such
party, whether or not such successors or assigns are permitted by the terms herein.


 


5.7 Amendments;
Waivers. No provision of this Note may be waived or amended except in a written instrument signed by the Company and the Holder. No
waiver of any default with respect to any provision, condition or requirement of this Note shall be deemed to be a continuing waiver in
the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay
or omission of either party to exercise any right hereunder in any manner impair the exercise of any such right.


 


5.8 Compliance
with Securities Laws. The Holder of this Note acknowledges that this Note is being acquired solely for the Holder’s own account
and not as a nominee for any other party, and for investment, and that the Holder shall not offer, sell or otherwise dispose of this Note
in violation of securities laws. This Note and any note issued in substitution or replacement therefor shall be stamped or imprinted with
a legend in substantially the following form:


 


“THIS NOTE HAS NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL
OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.”


 


5.9 Jurisdiction;
Venue. Any action, proceeding or claim arising out of, or relating in any way to this Agreement shall be brought and enforced in the
New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York. The Company
and the Holder irrevocably submit to the jurisdiction of such courts, which jurisdiction shall be exclusive, and hereby waive any objection
to such exclusive jurisdiction or that such courts represent an inconvenient forum. The prevailing party in any such action shall be entitled
to recover its reasonable and documented attorneys’ fees and out-of-pocket expenses relating to such action or proceeding.


 


5.10 Parties
in Interest. This Note shall be binding upon, inure to the benefit of and be enforceable by the Maker, the Holder and their respective
successors and permitted assigns.


 


5.11 Failure
or Indulgence Not Waiver. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.


 


5.12 Maker
Waivers. Except as otherwise specifically provided herein, the Maker and all others that may become liable for all or any part of
the obligations evidenced by this Note hereby waive presentment, demand, notice of nonpayment, protest and all other demands and notices
in connection with the delivery, acceptance, performance and enforcement of this Note, and do hereby consent to any number of renewals
of extensions of the time or payment hereof and agree that any such renewals or extensions may be made without notice to any such persons
and without affecting their liability herein and do further consent to the release of any person liable hereon, all without affecting
the liability of the other persons, firms or Maker liable for the payment of this Note, AND DO HEREBY WAIVE TRIAL BY JURY.


 


(a) No
delay or omission on the part of the Holder in exercising its rights under this Note, or course of conduct relating hereto, shall operate
as a waiver of such rights or any other right of the Holder, nor shall any waiver by the Holder of any such right or rights on any one
occasion be deemed a waiver of the same right or rights on any future occasion.





 






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(b) THE
MAKER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS NOTE IS A PART IS A COMMERCIAL TRANSACTION, AND TO THE EXTENT ALLOWED BY APPLICABLE
LAW, HEREBY WAIVES ITS RIGHT TO NOTICE AND HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE HOLDER OR ITS SUCCESSORS OR ASSIGNS
MAY DESIRE TO USE.


 


5.13 Definitions.
Capitalized terms used herein and not defined shall have the meanings set forth in the Purchase Agreement. For the purposes hereof, the
following terms shall have the following meanings:


 


(a)
“Indebtedness” means: (a) all obligations for borrowed money; (b) all obligations evidenced by bonds, debentures, notes,
or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, current
swap agreements, interest rate hedging agreements, interest rate swaps, or other financial products; (c) all capital lease obligations
that exceed $150,000 in the aggregate in any fiscal year; (d) all obligations or liabilities secured by a lien or encumbrance on any asset
of the Maker, irrespective of whether such obligation or liability is assumed; (e) all obligations for the deferred purchase price of
assets, together with trade debt and other accounts payable that exceed $150,000 in the aggregate in any fiscal year; (f) all synthetic
leases; and (g) any obligation guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted
or sold with recourse) any of the foregoing obligations of any other person.



 


(b)
“Mandatory Default Amount” means an amount equal to one hundred five percent (105%) of the Outstanding Principal Amount
of this Note on the date on which the first Event of Default has occurred hereunder.


 


(c) “Market
Capitalization” means, as of any date of determination, the product of (a) the number of issued and outstanding shares of Common
Stock as of such date (exclusive of any shares of Common Stock issuable upon the exercise of options or warrants or conversion of any
convertible securities), multiplied by (b) the closing price of the Common Stock on the Trading Market on the date of determination.


 


(d) “Outstanding
Principal Amount” means, at the time of determination, the Principal Amount outstanding after giving effect to any conversions
or prepayments pursuant to the terms hereof.


 


(e) “Repayment
Shares” means shares of Common Stock issued to the Holder by the Maker as payment for accrued interest and/or the Principal
Amount, pursuant to Section 1.2 of this Note.


 


(f) “Repayment
Share Price” means ninety percent (90%) of the average of the five (5) lowest daily VWAPs during the ten (10) Trading Days prior
to the issuance of the Repayment Shares.


 


(g) “Trading
Day” means a day on which the Common Stock is traded on a Trading Market.


 


(h) “VWAP”
means, as of any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of one share of Common Stock trading in the ordinary course of
business on the applicable Trading Price for such date (or the nearest preceding date) on such Trading Market as reported by Bloomberg
Financial L.P.; (b) if the Common Stock is not then listed on a Trading Market and if the Common Stock is traded in the over-the-counter
market, as reported by the OTCQX or OTCQB markets, the volume weighted average price of one share of Common Stock for such date (or the
nearest preceding date) on the OTCQX or OTCQB markets, as reported by Bloomberg Financial L.P.; (c) if the Common Stock is not then listed
or quoted on a Trading Market or on the OTCQX or OTCBQ markets and if prices for the Common Stock are then reported in the “Pink
Sheets” published by the OTC Markets Group (or a similar organization or agency succeeding to its functions of reporting prices),
the most recent bid price of one share of Common Stock so reported, as reported by Bloomberg Financial L.P.; or (d) in all other cases,
the fair market value of one share of Common Stock as determined by an independent appraiser selected in good faith by the Holder and
reasonably acceptable to the Company.


 


5.14 Transitional
Arrangements. This Note shall, on the Restatement Closing Date, supersede the Prior Note in its entirety, except as expressly provided
in this Section 5.14. The parties hereto agree that this Note is not intended by the parties to be a novation and the security interests
and Liens granted by under the Security Agreement continue in full force and effect, including from and after the date hereof. On the
Restatement Closing Date, the rights and obligations of the parties evidenced by the Prior Note shall be evidenced by this Note.


 


[Signature Pages Follow]


 






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IN WITNESS WHEREOF, the Maker has caused
this Note to be duly executed by its duly authorized officer as of the date first above indicated.


 


	 	COMSOVEREIGN HOLDING CORP.
	 	 
	 	By:	/s/ Daniel L. Hodges
	 	 	Name:	Daniel L. Hodges
	 	 	Title:	Chief Executive Officer






 






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EXHIBIT B


 


FORM OF CONVERSION NOTICE


 


(To be Executed by the Registered Holder in order
to Convert the Note)


 


The undersigned hereby irrevocably
elects to convert $ ________________ of the principal amount of the above Note No. ___ into shares of Common Stock of COMSovereign Holding
Corp. (the “Maker”) according to the conditions hereof, as of the date written below.


 


Date of Conversion:


 


Conversion Price:


 


Number of shares of Common Stock beneficially owned or deemed
beneficially owned by the Holder on the Conversion Date:


 


	 	[HOLDER]
	 	 
	 	By:	        
	 	Name:
	 	Title:
	 	 
	 	Address:



 


 


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