Exhibit 10.6


  


 


 


NEITHER THE ISSUANCE AND
SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (B) AN OPINION OF COUNSEL (WHICH MAY BE THE LEGAL COUNSEL OPINION (AS DEFINED IN THE PURCHASE AGREEMENT)), IN A GENERALLY ACCEPTABLE
FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144, RULE 144A OR REGULATION S UNDER SAID
ACT OR OTHER APPLICABLE EXEMPTION. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 





	Principal Amount: $562,500.00	Issue Date: September 20, 2021
	Actual Amount of Purchase Price: $506,250.00	 



  


PROMISSORY NOTE


 


FOR
VALUE RECEIVED, MOBIQUITY TECHNOLOGIES, INC., a New York corporation (hereinafter called the “Borrower” or the
“Company”) (Trading Symbol: MOBQ), hereby promises to pay to the order of Talos Victory Fund, LLC,
a Delaware limited liability company, or registered assigns (the “Holder”), in the form of lawful money of the United
States of America, the principal sum of $562,500.00, which amount is the $506,250.00 actual amount of the purchase price (the
“Consideration”) hereof plus an original issue discount in the amount of $56,250.00 (the “OID”) (subject to
adjustment herein) (the “Principal Amount”) and to pay interest on the unpaid Principal Amount hereof at the rate of ten
percent (10%) (the “Interest Rate”) per annum (with the understanding that the first twelve months of interest (equal to
$56,250.00) shall be guaranteed and earned in full as of the Issue Date) from the date hereof (the “Issue Date”) until
the same becomes due and payable, whether at maturity or upon acceleration or by prepayment or otherwise, as further provided
herein. The maturity date shall be twelve (12) months from the Issue Date (the “Maturity Date”), and is the date upon
which the Principal Sum, the OID, as well as any accrued and unpaid interest and other fees, shall be due and payable.


 


This
Note may be prepaid or repaid in whole or in part at any time without penalty (except with respect to any applicable default penalties
or other fees accrued under this Note), subject to the provisions of Section 1.9 contained herein.


 


Any
Principal Amount or interest on this Note which is not paid when due shall bear interest at the rate of the lesser of (i) sixteen percent
(16%) per annum and (ii) the maximum amount permitted by law from the due date thereof until the same is paid (“Default Interest”).
Default Interest shall be computed on the basis of a 365-day year and the actual number of days elapsed.


 


All
payments due hereunder (to the extent not converted into shares of common stock, $0.0001 par value per share, of the Borrower (the “Common
Stock”) in accordance with the terms hereof) shall be made in lawful money of the United States of America. All payments shall
be made at such address as the Holder shall hereafter give to the Borrower by written notice made in accordance with the provisions of
this Note. Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a business day, the same
shall instead be due on the next succeeding day which is a business day.


 


 


 


 






    	 	1	 



     

    

 


Each
capitalized term used herein, and not otherwise defined, shall have the meaning ascribed thereto in that certain Securities Purchase
Agreement, dated as of the Issue Date, pursuant to which this Note was originally issued (the “Purchase Agreement”). As used
in this Note, the term “business day” shall mean any day other than a Saturday, Sunday or a day on which commercial banks
in the city of New York, New York are authorized or required by law or executive order to remain closed. As used herein, the term “Trading
Day” means any day that shares of Common Stock are listed for trading or quotation on the Principal Market (as defined in the Purchase
Agreement), provided, however, that if the Common Stock is not then listed or quoted on any Principal Market, then any calendar day.


 


This
Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive
rights or other similar rights of shareholders of the Borrower and will not impose personal liability upon the holder thereof.


 


The following
terms shall also apply to this Note:


 


ARTICLE I. CONVERSION RIGHTS


 


1.1  
Conversion Right. The Holder shall have the right, on any calendar day, at any time on or following the Issue Date, to
convert all or any portion of the then outstanding and unpaid Principal Amount and interest (including any Default Interest) into fully
paid and non-assessable shares of Common Stock, as such Common Stock exists on the Issue Date, or any shares of capital stock or other
securities of the Borrower into which such Common Stock shall hereafter be changed or reclassified, at the Conversion Price (as defined
below) determined as provided herein (a “Conversion”); provided, however, that notwithstanding anything to the contrary
contained herein, the a Holder shall not have the right to convert any portion of this Note, pursuant to Section 1 or otherwise, to the
extent that after giving effect to such issuance after conversion as set forth on the applicable Notice of Conversion, the Holder (together
with the Holder’s affiliates (the “Affiliates”), and any other Persons (as defined below) acting as a group together
with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)), would beneficially own in
excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common
Stock beneficially owned by the Holder and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion
of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would
be issuable upon (i) conversion of the remaining, nonconverted portion of this Note beneficially owned by the Holder or any of its Affiliates
or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company
subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any
of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 1.1, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder,
it being acknowledged by the Holder that the Holder is solely responsible for any schedules required to be filed in accordance therewith.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the
Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 1.1, in determining the number of outstanding
shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Company’s
most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company
or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common Stock outstanding.
Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing 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 this Note, by the Holder or its Affiliates
or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial
Ownership Limitation” shall be 4.99% of the number of shares of the Common Stock outstanding at the time of the respective calculation
hereunder. “Person” and “Persons” 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.
The limitations contained in this paragraph shall apply to a successor holder of this Note. The number of Conversion Shares to be issued
upon each conversion of this Note shall be determined by dividing the Conversion Amount (as defined below) by the applicable Conversion
Price then in effect on the date specified in the notice of conversion, in the form attached hereto as Exhibit A (the “Notice
of Conversion”), delivered to the Borrower or Borrower’s transfer agent by the Holder in accordance with Section 1.4 below;
provided that the Notice of Conversion is submitted by facsimile or e-mail (or by other means resulting in, or reasonably expected to
result in, notice) to the Borrower or Borrower’s transfer agent before 11:59 p.m., New York, New York time on such conversion date
(the “Conversion Date”). The term “Conversion Amount” means, with respect to any conversion of this Note, the
sum of (1) the Principal Amount of this Note to be converted in such conversion plus (2) at the Holder’s option, accrued
and unpaid interest, if any, on such Principal Amount at the Interest Rate to the Conversion Date, plus (3) at the Holder’s
option, Default Interest, if any, on the amounts referred to in the immediately preceding clauses (1) and/or (2).


 


 


 


 






    	 	2	 



     

    

 


1.2
Conversion Price.


 


(a) 
Calculation of Conversion Price. The per share conversion price into which Principal Amount and interest (including any
Default Interest) under this Note shall be convertible into shares of Common Stock hereunder (the “Conversion Price”) shall
equal $5.00, provided, however, that if the Company consummates an Uplist Offering (as defined in this Note) on or before the date that
is one hundred and eighty (180) calendar days after the Issue Date, then the Conversion Price shall equal 70% of the offering price per
share of Common Stock (or unit, if units are offered in the Uplist Offering) at which the Uplist Offering is made (for the avoidance
of doubt, if a unit includes more than one share of the Common Stock in the Uplist Offering, the Conversion Price shall mean 70% of the
unit price divided by the number of shares of Common Stock contained in a unit). For the avoidance of doubt, if the date of a respective
conversion under this Note is on or before the date that is one hundred and eighty (180) calendar days after the Issue Date and the Company
has not consummated an Uplist Offering, then the Conversion Price shall equal $5.00 per share. “Uplist Offering” shall mean
an offering of Common Stock (or units consisting of Common Stock and warrants to purchase Common Stock) that will result in the immediate
listing for trading of the Common Stock on the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market, the New York Stock Exchange, or any other national securities exchange (or any successors to any of the foregoing). If
at any time the Conversion Price as determined hereunder for any conversion would be less than the par value of the Common Stock, then
at the sole discretion of the Holder, the Conversion Price hereunder may equal such par value for such conversion and the Conversion
Amount for such conversion may be increased to include Additional Principal, where “Additional Principal” means such additional
amount to be added to the Conversion Amount to the extent necessary to cause the number of conversion shares issuable upon such conversion
to equal the same number of conversion shares as would have been issued had the Conversion Price not been adjusted by the Holder to the
par value price. The Conversion Price is subject to equitable adjustments for stock splits, stock dividends or rights offerings by the
Borrower relating to the Borrower’s securities or the securities of any subsidiary of the Borrower, combinations, recapitalization,
reclassifications, extraordinary distributions and similar events. Holder shall be entitled to deduct $750.00 from the conversion amount
in each Notice of Conversion to cover Holder’s fees associated with each Notice of Conversion.


 


1.3  
Authorized and Reserved Shares. The Borrower covenants that at all times until the Note is satisfied in full, the Borrower
will reserve from its authorized and unissued Common Stock a sufficient number of shares, free from preemptive rights, to provide for
the issuance of a number of Conversion Shares equal to the greater of: (a) 168,750 shares of Common Stock or (b) the sum of (i) the number
of Conversion Shares issuable upon the full conversion of this Note (assuming no payment of Principal Amount or interest) at the time
of such calculation (taking into consideration any adjustments to the Conversion Price as provided in this Note) multiplied by (ii)
one and a half (1.5) (the “Reserved Amount”). The Borrower represents that upon issuance, the Conversion Shares will be duly
and validly issued, fully paid and non-assessable. The Borrower (i) acknowledges that it has irrevocably instructed its transfer agent
to issue certificates for the Conversion Shares or instructions to have the Conversion Shares issued as contemplated by Section 1.4(f)
hereof, and (ii) agrees that its issuance of this Note shall constitute full authority to its officers and agents who are charged with
the duty of executing stock certificates or cause the Company to electronically issue shares of Common Stock to execute and issue the
necessary certificates for the Conversion Shares or cause the Conversion Shares to be issued as contemplated by Section 1.4(f) hereof
in accordance with the terms and conditions of this Note.


 


If,
at any time the Borrower does not maintain the Reserved Amount it will be considered an Event of Default (as defined in this Note) under
this Note.


 


1.4 Method of Conversion.




 


(a)  
Mechanics of Conversion. This Note may be converted by the Holder in whole or in part, on any calendar day, at any time
on or following the Issue Date, by submitting to the Borrower or Borrower’s transfer agent a Notice of Conversion (by facsimile,
e-mail or other reasonable means of communication dispatched on the Conversion Date prior to 11:59 p.m., New York, New York time). Any
Notice of Conversion submitted after 11:59 p.m., New York, New York time, shall be deemed to have been delivered and received on the
next Trading Day.


 


 


 


 






    	 	3	 



     

    

 


(b)  
Surrender of Note Upon Conversion. Notwithstanding anything to the contrary set forth herein, upon conversion of this Note
in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Borrower unless the entire
unpaid Principal Amount is so converted. The Holder and the Borrower shall maintain records showing the Principal Amount so converted
and the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder and the Borrower, so as not to
require physical surrender of this Note upon each such conversion. In the event of any dispute or discrepancy, such records of the Borrower
shall, prima facie, be controlling and determinative in the absence of manifest error. Notwithstanding the foregoing, if any portion
of this Note is converted as aforesaid, the Holder may not transfer this Note unless the Holder first physically surrenders this Note
to the Borrower, whereupon the Borrower will forthwith issue and deliver upon the order of the Holder a new Note of like tenor, registered
as the Holder (upon payment by the Holder of any applicable transfer taxes) may request, representing in the aggregate the remaining
unpaid Principal Amount of this Note. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason
of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted Principal Amount of this
Note represented by this Note may be less than the amount stated on the face hereof.


 


(c)  
Payment of Taxes. The Borrower shall not be required to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares of Common Stock or other securities or property on conversion of this Note in a name other than that
of the Holder (or in street name), and the Borrower shall not be required to issue or deliver any such shares or other securities or
property unless and until the person or persons (other than the Holder or the custodian in whose street name such shares are to be held
for the Holder’s account) requesting the issuance thereof shall have paid to the Borrower the amount of any such tax or shall have
established to the satisfaction of the Borrower that such tax has been paid.


 


(d) 
Delivery of Common Stock Upon Conversion. Upon receipt by the Borrower or Borrower’s transfer agent from the Holder
of a facsimile transmission or e-mail (or other reasonable means of communication) of a Notice of Conversion meeting the requirements
for conversion as provided in this Section 1.4, the Borrower shall issue and deliver or cause to be issued and delivered to or upon the
order of the Holder certificates for the Conversion Shares (or cause the electronic delivery of the Conversion Shares as contemplated
by Section 1.4(f) hereof) within two(2)) Trading Days after such receipt (the “Deadline”) (and, solely in the case of conversion
of the entire unpaid Principal Amount and interest (including any Default Interest) under this Note, surrender of this Note). If the
Company shall fail for any reason or for no reason to issue to the Holder on or prior to the Deadline a certificate for the number of
Conversion Shares or to which the Holder is entitled hereunder and register such Conversion Shares on the Company’s share register
or to credit the Holder’s balance account with DTC (as defined below) for such number of Conversion Shares to which the Holder
is entitled upon the Holder’s conversion of this Note (a “Conversion Failure”), then, in addition to all other remedies
available to the Holder, (i) the Company shall pay in cash to the Holder on each day after the Deadline and during such Conversion Failure
an amount equal to 2.0% of the product of (A) the sum of the number of Conversion Shares not issued to the Holder on or prior to the
Deadline and to which the Holder is entitled and (B) the closing sale price of the Common Stock on the Trading Day immediately preceding
the last possible date which the Company could have issued such Conversion Shares to the Holder without violating this Section 1.4(d);
and (ii) the Holder, upon written notice to the Company, may void all or any portion of such Notice of Conversion; provided that the
voiding of all or any portion of a Notice of Conversion shall not affect the Company’s obligations to make any payments which have
accrued prior to the date of such notice. In addition to the foregoing, if on or prior to the Deadline the Company shall fail to issue
and deliver a certificate to the Holder and register such Conversion Shares on the Company’s share register or credit the Holder’s
balance account with DTC for the number of Conversion Shares to which the Holder is entitled upon the Holder’s exercise hereunder
or pursuant to the Company’s obligation pursuant to clause (ii) below, and if on or after such Trading Day the Holder purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Holder of shares of Common
Stock issuable upon such exercise that the Holder anticipated receiving from the Company, then the Company shall, within two (2) Trading
Days after 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 reasonable and customary out-of-pocket expenses, if any)
for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s obligation to deliver
such certificate (and to issue such Conversion Shares) or credit such Holder’s balance account with DTC for such Conversion Shares
shall terminate, or (ii) promptly honor its obligation to deliver to the Holder a certificate or certificates representing such Conversion
Shares or credit such Holder’s balance account with DTC 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) the closing sales price of the Common Stock
on the date of exercise. 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 the Conversion Shares (or to electronically deliver such Conversion Shares) upon
the conversion of this Note as required pursuant to the terms hereof.


 


 


 


 






    	 	4	 



     

    

 


(e)   
Obligation of Borrower to Deliver Common Stock. At the time that the Holder submits the Notice of Conversion to the Borrower
or Borrower’s transfer agent, the Holder shall be deemed to be the holder of record of the Conversion Shares issuable upon such
conversion, the outstanding Principal Amount and the amount of accrued and unpaid interest (including any Default Interest) under this
Note shall be reduced to reflect such conversion, and, unless the Borrower defaults on its obligations under this Article I, all rights
with respect to the portion of this Note being so converted shall forthwith terminate except the right to receive the Common Stock or
other securities, cash or other assets, as herein provided, on such conversion. If the Holder shall have given a Notice of Conversion
as provided herein, the Borrower’s obligation to issue and deliver the certificates for the Conversion Shares (or cause the electronic
delivery of the Conversion Shares as contemplated by Section 1.4(f) hereof) shall be absolute and unconditional, irrespective of the
absence of any action by the Holder to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of
any judgment against any person or any action to enforce the same, any failure or delay in the enforcement of any other obligation of
the Borrower to the holder of record, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach
by the Holder of any obligation to the Borrower, and irrespective of any other circumstance which might otherwise limit such obligation
of the Borrower to the Holder in connection with such conversion. The Conversion Date specified in the Notice of Conversion shall be
the Conversion Date so long as the Notice of Conversion is sent to the Borrower or Borrower’s transfer agent before 11:59 p.m.,
New York, New York time, on such date.


 


(f)  
Delivery of Conversion Shares by Electronic Transfer. In the event the Conversion Shares are eligible for legend removal
as free trading shares, in lieu of delivering physical certificates representing the Conversion Shares issuable upon conversion hereof,
provided the Borrower is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer or Deposit/Withdrawal
at Custodian programs, upon request of the Holder and its compliance with the provisions contained in Section 1.1 and in this Section
1.4, the Borrower shall use its best efforts to cause its transfer agent to electronically transmit the Conversion Shares issuable upon
conversion hereof to the Holder by crediting the account of Holder’s Prime Broker with DTC through its Deposit Withdrawal Agent
Commission system.


 


1.5   Concerning the Shares. The Conversion
Shares issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective
registration statement under the 1933 Act or (ii) the Borrower or its transfer agent shall have been furnished with an opinion of counsel
(which opinion shall be the Legal Counsel Opinion (as defined in the Purchase Agreement)) to the effect that the shares to be sold or
transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant
to Rule 144, Rule 144A, Regulation S, or other applicable exemption, or (iv) such shares are transferred to an “affiliate”
(as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 1.5
and who is an Accredited Investor (as defined in the Purchase Agreement). Except as otherwise provided in the Purchase Agreement (and
subject to the removal provisions set forth below), until such time as the Conversion Shares have been registered under the 1933 Act
or otherwise may be sold pursuant to Rule 144, Rule 144A, Regulation S, or other applicable exemption without any restriction as to the
number of securities as of a particular date that can then be immediately sold, each certificate for the Conversion Shares that has not
been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or
an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:


 


“NEITHER THE ISSUANCE
AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (B) AN OPINION OF COUNSEL (WHICH MAY BE THE LEGAL COUNSEL OPINION (AS DEFINED IN THE PURCHASE AGREEMENT)), IN A GENERALLY ACCEPTABLE
FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD PURSUANT TO RULE 144, RULE 144A, REGULATION S UNDER SAID ACT,
OR OTHER APPLICABLE EXEMPTION. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.”


 


 


 






    	 	5	 



     

    

 


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


 


1.6 Effect
of Certain Events.




 


(a)    
Effect of Merger, Consolidation, Etc. At the option of the Holder, the sale, conveyance or disposition of all or substantially
all of the assets of the Borrower, or the consolidation, merger or other business combination of the Borrower with or into any other
Person (as defined below) or Persons when the Borrower is not the survivor shall either: (i) be deemed to be an Event of Default pursuant
to which the Borrower shall be required to pay to the Holder upon the consummation of and as a condition to such transaction an amount
equal to the Default Amount (defined in Section 3.21) or (ii) be treated pursuant to Section 1.6(b) hereof. “Person” shall
mean any individual, corporation, limited liability company, partnership, association, trust or other entity or organization.


 


(b)  
Adjustment Due to Merger, Consolidation, Etc. If, at any time when this Note is issued and outstanding and prior to conversion
of all of this Note, there shall be any merger, consolidation, exchange of shares, recapitalization, reorganization, or other similar
event, as a result of which shares of Common Stock of the Borrower shall be changed into the same or a different number of shares of
another class or classes of stock or securities of the Borrower or another entity, or in case of any sale or conveyance of all or substantially
all of the assets of the Borrower other than in connection with a plan of complete liquidation of the Borrower, then the Holder of this
Note shall thereafter have the right to receive upon conversion of this Note, upon the basis and upon the terms and conditions specified
herein and in lieu of the shares of Common Stock immediately theretofore issuable upon conversion, such stock, securities or assets which
the Holder would have been entitled to receive in such transaction had this Note been converted in full immediately prior to such transaction
(without regard to any limitations on conversion set forth herein), and in any such case appropriate provisions shall be made with respect
to the rights and interests of the Holder of this Note to the end that the provisions hereof (including, without limitation, provisions
for adjustment of the Conversion Price and of the number of shares issuable upon conversion of the Note) shall thereafter be applicable,
as nearly as may be practicable in relation to any securities or assets thereafter deliverable upon the conversion hereof. The Borrower
shall not effectuate any transaction described in this Section 1.6(b) unless (a) it first gives, to the extent practicable, at least
thirty (30) days prior written notice (but in any event at least fifteen (15) days prior written notice) of the record date of the special
meeting of shareholders to approve, or if there is no such record date, the consummation of, such merger, consolidation, exchange of
shares, recapitalization, reorganization or other similar event or sale of assets (during which time the Holder shall be entitled to
convert this Note) and (b) the resulting successor or acquiring entity (if not the Borrower) assumes by written instrument the obligations
of this Section 1.6(b). The above provisions shall similarly apply to successive consolidations, mergers, sales, transfers or share exchanges.


 


 


 


 






    	 	6	 



     

    

 


(c)    
Adjustment Due to Distribution. If the Borrower shall declare or make any distribution of its assets (or rights to acquire
its assets) to holders of Common Stock as a dividend, stock repurchase, by way of return of capital or otherwise (including any dividend
or distribution to the Borrower’s shareholders in cash or shares (or rights to acquire shares) of capital stock of a subsidiary
(i.e., a spin-off)) (a “Distribution”), then the Holder of this Note shall be entitled, upon any conversion of this Note
after the date of record for determining shareholders entitled to such Distribution, to receive the amount of such assets which would
have been payable to the Holder with respect to the shares of Common Stock issuable upon such conversion had such Holder been the holder
of such shares of Common Stock on the record date for the determination of shareholders entitled to such Distribution.


 


(d)  
Purchase Rights. If, at any time when all or any portion of this Note is issued and outstanding, the Borrower issues any
convertible securities or rights to purchase stock, warrants, securities or other property (the “Purchase Rights”) pro rata
to the record holders of any class of Common Stock, then the Holder of this Note will be entitled to acquire, upon the terms applicable
to such Purchase Rights, the aggregate Purchase Rights which such Holder could have acquired if such Holder had held the number of shares
of Common Stock acquirable upon complete conversion of this Note (without regard to any limitations on conversion contained herein) immediately
before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights or, if no such record is taken, the
date as of which the record holders of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights.


 


(e)    
Dilutive Issuance. If the Borrower, at any time while this Note or any amounts due hereunder are outstanding, issues, sells
or grants (or has issued, sold or granted as of the Issue Date, as the case may be) any option to purchase, or sells or grants any right
to reprice, or otherwise disposes of, or issues (or has sold or issued, as the case may be, or announces any sale, grant or any option
to purchase or other disposition), any Common Stock or other securities convertible into, exercisable for, or otherwise entitle any person
or entity the right to acquire, shares of Common Stock (including, without limitation, upon conversion of this Note, and any convertible
notes or warrants outstanding as of or following the Issue Date), in each or any case at an effective price per share that is lower than
the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive
Issuance”) (it being agreed that if the holder of the Common Stock or other securities so issued shall at any time, whether by
operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants,
options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective
price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion
Price on such date of the Dilutive Issuance), then the Conversion Price shall be reduced, at the option of the Holder, to a price equal
to the Base Conversion Price. Such adjustment shall be made whenever such Common Stock or other securities are issued. By way of example,
and for the avoidance of doubt, if the Company issues a convertible promissory note (including but not limited to a Variable Rate Transaction),
and the holder of such convertible promissory note has the right to convert it into Common Stock at an effective price per share that
is lower than the then Conversion Price (including but not limited to a conversion price with a discount that varies with the trading
prices of or quotations for the Common Stock), then the Holder has the right to reduce the Conversion Price to such Base Conversion Price
(including but not limited to a conversion price with a discount that varies with the trading prices of or quotations for the Common
Stock) in perpetuity regardless of whether the holder of such convertible promissory note ever effectuated a conversion at the Base Conversion
Price. Notwithstanding the foregoing, no adjustment will be made under this Section 1.6(e) in respect of an Exempt Issuance. In the event
of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 1.6(e) shall be calculated
as if all such securities were issued at the initial closing.


 


An
“Exempt Issuance” shall mean the issuance of (a) shares of Common Stock or other securities to officers or directors of the
Company pursuant to any stock or option or similar equity incentive plan duly adopted for such purpose, by a majority of the non-employee
members of the Company’s Board of Directors or a majority of the members of a committee of non-employee directors established for
such purpose in a manner which is consistent with the Company’s prior business practices; (b) securities issued pursuant to a merger,
consolidation, acquisition or similar business combination approved by a majority of the disinterested directors of the Company, provided
that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide to the Company
additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; (c) securities issued
pursuant to any equipment loan or leasing arrangement, real property leasing arrangement or debt financing from a bank or similar financial
institution approved by a majority of the disinterested directors of the Company; (d) securities issued with respect to which the Holder
waives its rights in writing under this Section 1.6(e); or (e) securities (shares of common stock) issued underlying any derivative securities
listed in Schedule 3(c) of the Purchase Agreement so long as those securities are not amended on or after Issue Date of this Note.


 


 


 


 






    	 	7	 



     

    

 


(f)    
Notice of Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Price as a result of the
events described in Section 1.6 of this Note, the Borrower shall, at its expense and within three business days after the occurrence
of each respective adjustment or readjustment of the Conversion Price, compute such adjustment or readjustment and prepare and furnish
to the Holder a certificate setting forth (i) the Conversion Price in effect at such time based upon the Dilutive Issuance, (ii) 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 conversion
of the Note, (iii) the detailed facts upon which such adjustment or readjustment is based, and (iv) copies of the documentation (including
but not limited to relevant transaction documents) that evidences the adjustment or readjustment. In addition, the Borrower shall, within
three business days after each written request from the Holder, furnish to such Holder a like certificate setting forth (i) the Conversion
Price in effect at such time based upon the Dilutive Issuance, (ii) 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 conversion of the Note, (iii) the detailed facts upon which such adjustment
or readjustment is based, and (iv) copies of the documentation (including but not limited to relevant transaction documents) that evidences
the adjustment or readjustment. For the avoidance of doubt, each adjustment or readjustment of the Conversion Price as a result of the
events described in Section 1.6 of this Note shall occur without any action by the Holder and regardless of whether the Borrower complied
with the notification provisions in Section 1.6 of this Note.


 


1.7
[Intentionally Omitted].


 


1.8   
Status as Shareholder. Upon submission of a Notice of Conversion by a Holder, (i) the Conversion Shares covered thereby
(other than the Conversion Shares, if any, which cannot be issued because their issuance would exceed such Holder’s allocated portion
of the Reserved Amount or Maximum Share Amount) shall be deemed converted into shares of Common Stock and (ii) the Holder’s rights
as a Holder of such converted portion of this Note shall cease and terminate, excepting only the right to receive certificates for such
shares of Common Stock and to any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure
by the Borrower to comply with the terms of this Note. Notwithstanding the foregoing, if a Holder has not received certificates for all
shares of Common Stock prior to the tenth (10th) business day after the expiration of the Deadline with respect to a conversion of any
portion of this Note for any reason, then (unless the Holder otherwise elects to retain its status as a holder of Common Stock by so
notifying the Borrower) the Holder shall regain the rights of a Holder of this Note with respect to such unconverted portions of this
Note and the Borrower shall, as soon as practicable, return such unconverted Note to the Holder or, if the Note has not been surrendered,
adjust its records to reflect that such portion of this Note has not been converted. In all cases, the Holder shall retain all of its
rights and remedies for the Borrower’s failure to convert this Note.


 


1.9   Prepayment. At
any time while this Note is outstanding (the “Prepayment Period”), the Borrower shall have the right, exercisable on
three (3) Trading Days prior written notice to the Holder of the Note, to prepay the outstanding Principal Amount and interest then
due under this Note in accordance with this Section 1.9. Any notice of prepayment hereunder (an “Optional Prepayment
Notice”) shall be delivered to the Holder of the Note at its registered addresses and shall state: (1) that the Borrower is
exercising its right to prepay the Note, and (2) the date of prepayment which shall be three (3) Trading Days from the date of the
Optional Prepayment Notice (the “Optional Prepayment Date”). The Holder shall have the right, at all times prior to the
actual receipt of the full prepayment amount on the Optional Prepayment Date, to instead convert all or any portion of the Note
pursuant to the terms of this Note, including the amount of this Note to be prepaid by the Borrower in accordance with this Section
1.9. On the Optional Prepayment Date, the Borrower shall make payment of the amounts designated below to or upon the order of the
Holder as specified by the Holder in writing to the Borrower. If the Borrower exercises its right to prepay the Note in accordance
with this Section 1.9, the Borrower shall make payment to the Holder of an amount in cash equal to the sum of: (w) 100% multiplied
by the Principal Amount then outstanding plus (x) accrued and unpaid interest on the Principal Amount to the Optional
Prepayment Date plus (y) $750.00 to reimburse Holder for administrative fees.


 


If the Borrower delivers an Optional
Prepayment Notice and on more than one occasion fails to pay the applicable prepayment amount due to the Holder of the Note as provided
in this Section 1.9, then the Borrower shall forever forfeit its right to prepay any part of the Note pursuant to this Section 1.9.


 


 


 


 






    	 	8	 



     

    

 


1.10  
Repayment from Proceeds. If, at any time prior to the full repayment or full conversion of all amounts owed under this Note,
the Company receives cash proceeds of more than $500,000.00 (the “Minimum Threshold”) in the aggregate from an equity or debt
financing, the exercise of outstanding warrants or options, from an equity line of credit of the Borrower, or the sale of assets (for
the avoidance of doubt, each time that the Company receives cash proceeds from any of the aforementioned sources, such amount shall be
aggregated together for purposes of calculating the Minimum Threshold), the Borrower must provide notice within three business days of
the Borrower’s receipt of proceeds and inform the Holder of or publicly disclose such receipt, following which the Holder shall
have the right in its sole discretion to require the Borrower to immediately apply up to one-third of all such proceeds after the Minimum
Threshold is reached to repay all or any portion of the outstanding Principal Amount and interest (including any Default Interest) then
due under this Note. Failure of the Borrower to comply with this provision shall constitute an Event of Default.


 


ARTICLE II. RANKING AND CERTAIN COVENANTS


 


2.1  
Ranking and Security. This Note shall have priority over all unsecured indebtedness of the Borrower.


 


2.2  
Other Indebtedness. So long as the Borrower shall have any obligation under this Note, the Borrower shall not (directly
or indirectly through any Subsidiary or affiliate) incur or suffer to exist or guarantee any unsecured indebtedness that is senior to
or pari passu with (in priority of payment and performance) the Borrower’s obligations hereunder.


 


2.3  
Distributions on Capital Stock. So long as the Borrower shall have any obligation under this Note, the Borrower shall not
without the Holder’s written consent (a) pay, declare or set apart for such payment, any dividend or other distribution (whether
in cash, property or other securities) on shares of capital stock other than dividends on shares of Common Stock solely in the form of
additional shares of Common Stock or (b) directly or indirectly or through any subsidiary make any other payment or distribution in respect
of its capital stock except for distributions pursuant to any shareholders’ rights plan which is approved by a majority of the
Borrower’s disinterested directors.


 


2.4  
Restriction on Stock Repurchases and Debt Repayments. So long as the Borrower shall have any obligation under this Note,
the Borrower shall not without the Holder’s written consent redeem, repurchase or otherwise acquire (whether for cash or in exchange
for property or other securities or otherwise) in any one transaction or series of related transactions any shares of capital stock of
the Borrower or any warrants, rights or options to purchase or acquire any such shares, or repay any pari passu or subordinated indebtedness
of Borrower.


 


2.5   
Sale of Assets. So long as the Borrower shall have any obligation under this Note, the Borrower shall not, without the
Holder’s written consent, sell, lease or otherwise dispose of any significant portion of its assets outside the ordinary course
of business. Any consent by the Holder to the disposition of any assets may be conditioned on a specified use of the proceeds of disposition.


 


2.6    
Advances and Loans; Affiliate Transactions. So long as the Borrower shall have any obligation under this Note, the Borrower
shall not, without the Holder’s written consent, lend money, give credit, make advances to or enter into any transaction with any
person, firm, joint venture or corporation, including, without limitation, officers, directors, employees, subsidiaries and affiliates
of the Borrower, except loans, credits or advances (a) in existence or committed on the Issue Date and which the Borrower has informed
Holder in writing prior to the Issue Date, (b) in regard to transactions with unaffiliated third parties, made in the ordinary course
of business or (c) in regard to transactions with unaffiliated third parties, not in excess of $100,000. So long as the Borrower shall
have any obligation under this Note, the Borrower shall not, without the Holder’s written consent, repay any affiliate (as defined
in Rule 144) of the Borrower in connection with any indebtedness or accrued amounts owed to any such party.


 


 


 


 






    	 	9	 



     

    

 


2.7    
Section 3(a)(9) or 3(a)(10) Transaction. So long as this Note is outstanding, the Borrower shall not enter into any transaction
or arrangement structured in accordance with, based upon, or related or pursuant to, in whole or in part, either Section 3(a)(9) of the
Securities Act (a “3(a)(9) Transaction”) or Section 3(a)(10) of the Securities Act (a “3(a)(10) Transaction”).
In the event that the Borrower does enter into, or makes any issuance of Common Stock related to a 3(a)(9) Transaction or a 3(a)(10)
Transaction while this note is outstanding, a liquidated damages charge of 25% of the outstanding principal balance of this Note, but
not less than $25,000, will be assessed and will become immediately due and payable to the Holder at its election in the form of a cash
payment or added to the balance of this Note (under Holder's and Borrower's expectation that this amount will tack back to the Issue
Date). Notwithstanding anything contained herein to the contrary, this Section 2.7 shall not be applicable to the conversion of any outstanding
preferred stock (including, without limitation, the exercise of underlying warrants) as of the Issue Date into common stock or the conversion
or exercise of any derivative securities into common stock, which derivative securities are outstanding on the date hereof and listed
in Schedule 3(c) of the Purchase Agreement so long as those securities are not amended on or after Issue Date of this Note.


 


2.8 
Preservation of Business and Existence, etc. So long as the Borrower shall have any obligation under this Note, the Borrower
shall not, without the Holder’s written consent, (a) change the nature of its business; (b) 
sell, divest, change the structure of any material assets other than in the ordinary course of business; (c) enter into a Variable
Rate Transaction; or (d) enter into any merchant cash advance transactions. In addition, so long as the Borrower shall have any obligation
under this Note, the Borrower shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence,
rights and privileges, and become or remain, and cause each of its Subsidiaries (other than dormant Subsidiaries that have no or minimum
assets) to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned
or leased by it or in which the transaction of its business makes such qualification necessary.


 


2.9
Noncircumvention. The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate or Articles of Incorporation
or Bylaws, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale
of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note,
and will at all times in good faith carry out all the provisions of this Note and take all action as may be required to protect the rights
of the Holder.


 


2.10    Lost, Stolen or Mutilated Note.
Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this
Note, and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary form
and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder a new
Note.


 


ARTICLE III. EVENTS OF DEFAULT


 


It shall
be considered an event of default if any of the following events listed in this Article III (each, an “Event of Default”)
shall occur:


 


3.1  
Failure to Pay Principal or Interest. The Borrower fails to pay the Principal Amount hereof or interest thereon when due
on this Note, whether at maturity, upon acceleration or otherwise, or fails to fully comply with Section 1.10 of this Note.


 


 


 


 






    	 	10	 



     

    

 


3.2 
Conversion and the Shares. The Borrower (i) fails to issue Conversion Shares to the Holder (or announces or threatens in
writing that it will not honor its obligation to do so) upon exercise by the Holder of the conversion rights of the Holder in accordance
with the terms of this Note, (ii) fails to transfer or cause its transfer agent to transfer (issue) (electronically or in certificated
form) any certificate for the Conversion Shares issuable to the Holder upon conversion of or otherwise pursuant to this Note as and when
required by this Note, (iii) fails to reserve the Reserved Amount at all times after receiving a notice from Borrower and an opportunity
to cure the default within three business days of receipt of such notice, (iv) the Borrower directs its transfer agent not to transfer
or delays, impairs, and/or hinders its transfer agent in transferring (or issuing) (electronically or in certificated form) any certificate
for the Conversion Shares issuable to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note,
or fails to remove (or directs its transfer agent not to remove or impairs, delays, and/or hinders its transfer agent from removing)
any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any certificate for any Conversion Shares
issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note (or makes any written announcement,
statement or threat that it does not intend to honor the obligations described in this paragraph) and any such failure shall continue
uncured (or any written announcement, statement or threat not to honor its obligations shall not be rescinded in writing) for two (2)
Trading Days after the Holder shall have delivered a Notice of Conversion, and/or (v) fails to remain current in its obligations to its
transfer agent (including but not limited to payment obligations to its transfer agent). It shall be an Event of Default of this Note,
if a conversion of this Note is delayed, hindered or frustrated due to a balance owed by the Borrower to its transfer agent after receiving
a notice from Borrower and an opportunity to cure the default within three business days of receipt of such notice. If at the option
of the Holder, the Holder advances any funds to the Borrower’s transfer agent in order to process a conversion, such advanced funds
shall be added to the principal balance of the Note.


 


3.3   
Breach of Agreements and Covenants. The Borrower materially breaches any covenant, agreement, or other term or condition
contained in the Purchase Agreement, Registration Rights Agreement (as defined in the Purchase Agreement), this Note, Irrevocable Transfer
Agent Instructions, Warrant (as defined in the Purchase Agreement) (the “Warrant”), or in any agreement, statement or certificate
given in writing pursuant hereto or in connection herewith or therewith.


 


3.4  
Breach of Representations and Warranties. Any representation or warranty of the Borrower made in the Purchase Agreement,
Registration Rights Agreement, this Note, Irrevocable Transfer Agent Instructions, Warrant, or in any agreement, statement or certificate
given in writing pursuant hereto or in connection herewith or therewith shall be false or misleading in any material respect when made
and the breach of which has (or with the passage of time will have) a material adverse effect on the rights of the Holder with respect
to this Note or the Purchase Agreement.


 


3.5    
Receiver or Trustee. The Borrower or any subsidiary of the Borrower shall make an assignment for the benefit of creditors,
or apply for or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or
such a receiver or trustee shall otherwise be appointed.


 


3.6  
Judgments. Any money judgment, writ or similar process shall be entered or filed against the Borrower or any subsidiary
of the Borrower or any of its property or other assets for more than $100,000, and shall remain unvacated, unbonded or unstayed for a
period of twenty (20) days unless otherwise consented to by the Holder, which consent will not be unreasonably withheld.


 


3.7    
Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings, voluntary or involuntary,
for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Borrower or any subsidiary
of the Borrower.


 


 


 






    	 	11	 



     

    

 


3.8  
Failure to Comply with the 1934 Act. At any time after the Issue Date, the Borrower shall fail to comply with the reporting
requirements of the 1934 Act, including applicable available extensions, and/or the Borrower shall cease to be subject to the reporting
requirements of the 1934 Act.


 


3.9
Liquidation. Any dissolution, liquidation, or winding up of Borrower or any substantial portion of its business.


 


3.10  
Cessation of Operations. Any cessation of operations by Borrower or Borrower admits it is otherwise generally unable to
pay its debts as such debts become due, provided, however, that any disclosure of the Borrower’s ability to continue as a “going
concern” shall not be an admission that the Borrower cannot pay its debts as they become due.


 


3.11    
Maintenance of Assets. The failure by Borrower to maintain any material intellectual property rights, personal, real property
or other assets which are necessary to conduct its business (whether now or in the future).


 


3.12   
Financial Statement Restatement. The restatement of any financial statements filed by the Borrower with the SEC for any
date or period from two years prior to the Issue Date of this Note and until this Note is no longer outstanding.


 


3.13   
Replacement of Transfer Agent. In the event that the Borrower proposes to replace its transfer agent, the Borrower fails
to provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer Agent Instructions in a form as initially
delivered pursuant to the Purchase Agreement (including but not limited to the provision to irrevocably reserve shares of Common Stock
in the Reserved Amount) signed by the successor transfer agent to Borrower and the Borrower.


 


3.14  
Cross-Default. The declaration of an event of default by any lender or other extender of credit to the Company under any
notes, loans, agreements or other instruments of the Company evidencing any indebtedness of the Company (including those filed as exhibits
to or described in the Company’s filings with the SEC), after the passage of all applicable notice and cure or grace periods.


 


3.15  
Variable Rate Transactions. The Borrower consummates a Variable Rate Transaction at any time on or after the Issue Date.


 


3.16  
Inside Information. Any attempt by the Borrower or its officers, directors, and/or affiliates to transmit, convey, disclose,
or any actual transmittal, conveyance, or disclosure by the Borrower or its officers, directors, and/or affiliates of, material non-public
information concerning the Borrower, to the Holder or its successors and assigns, which is not immediately cured by Borrower’s
filing of a Form 8-K pursuant to Regulation FD on that same date.


 


3.17  
Unavailability of Rule 144. If, at any time on or after the date that is six (6) calendar months after the Issue Date,
the Holder is unable to obtain a standard “144 legal opinion letter” from an attorney reasonably acceptable to the Holder,
the Holder’s brokerage firm (and respective clearing firm), and the Borrower’s transfer agent in order to facilitate the
Holder’s conversion of any portion of the Note into free trading shares of the Borrower’s Common Stock pursuant to Rule 144.


 


3.18  
Delisting, Suspension, or Quotation of Trading of Common Stock. If, at any time on or after the Issue Date, the Borrower’s
Common Stock (i) is suspended from trading, (ii) halted from trading, and/or (iii) fails to be quoted or listed (as applicable) on a
Principal Market.


 


 


 


 






    	 	12	 



     

    

 


3.19   
Failure to Pay an Interim Payment. The Borrower fails to pay an Interim Payment (as defined in this Note) when due as provided
in Section 4.16 of this Note.


 


3.20   
Registration Statement Failures. The Borrower fails to (i) file a registration statement covering the Holder’s resale
at prevailing market prices (and not fixed prices) of all of the Common Stock (the “Registration Statement”) underlying the
Note and Warrant within forty-five (45) calendar days following the Issue Date, (ii) cause the Registration Statement to become effective
within ninety (90) calendar days following the date that the Registration Statement is initially filed, subject to an additional 30 calendar
days if needed to obtain up-listing approval to a National Exchange (as defined in the Purchase Agreement), (iii) cause the Registration
Statement to remain effective until the Note is extinguished in its entirety and the Warrant is exercised in the entirety, (iv) comply
with the provisions of the Registration Rights Agreement in all material respects, or (v) expeditiously amend the Registration Statement
or file a new Registration Statement (and cause such Registration Statement to become effective as provided in the Registration Rights
Agreement) if there are no longer sufficient shares registered under the initial Registration Statement for the Holder’s resale
at prevailing market prices (and not fixed prices) of all of the Common Stock underlying the Note and Warrant.


 


3.21   
Rights and Remedies Upon an Event of Default. Upon the occurrence of any Event of Default specified in this Article III,
this Note shall become immediately due and payable, and the Borrower shall pay to the Holder, in full satisfaction of its obligations
hereunder, an amount equal to the Principal Amount then outstanding plus accrued interest (including any Default Interest) through the
date of full repayment multiplied by 125% (collectively the “Default Amount”), as well as all costs, including, without limitation,
legal fees and expenses, of collection, all without demand, presentment or notice, all of which hereby are expressly waived by the Borrower.
Holder may, in its sole discretion, determine to accept payment part in Common Stock and part in cash. For purposes of payments in Common
Stock, the conversion formula set forth in Section 1.2 shall apply as well as all other provisions of this Note. The Holder shall be
entitled to exercise all other rights and remedies available at law or in equity.


 


Upon the occurrence of any Event
of Default, and in addition to any other right or remedy of the Holder hereunder, under the related transaction documents, or otherwise
at law or in equity, the Borrower hereby irrevocably authorizes and empowers Holder or its legal counsel, each as the Borrower’s
attorney-in-fact, to appear ex parte and with notice to the Borrower to confess judgment against the Borrower for the unpaid amount of
this Note. The judgment shall set forth the amount then due hereunder, plus attorney’s fees and cost of suit, and to release all
errors, and waive all rights of appeal. The Borrower waives the right to contest Holder’s rights under this section, including without
limitation the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of
the foregoing right and power to confess judgment will be deemed to exhaust such power, whether or not any such exercise shall be held
by any court to be invalid, voidable, or void, and such power shall continue undiminished and may be exercised from time to time as the
Holder may elect until all amounts owing on this Note have been paid in full.


 


ARTICLE IV. MISCELLANEOUS


 


4.1  
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 privileges. All rights and remedies of the Holder existing hereunder are cumulative
to, and not exclusive of, any rights or remedies otherwise available.


 


4.2   
Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder
shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or
certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv)
transmitted by hand delivery, telegram, e-mail or facsimile, addressed as set forth below or to such other address as such party shall
have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be
deemed effective (a) upon hand delivery or delivery by e-mail or facsimile, with accurate confirmation generated by the transmitting
facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such
notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses
for such communications shall be:


 


 


 


 






    	 	13	 



     

    

 


If to the Borrower, to:


 


MOBIQUITY TECHNOLOGIES, INC.


35 Torrington Lane


Shoreham, NY 11786


Attention: Dean Julia


e-mail: info@mobiquitytechnologies.com


 


If to the Holder:


 


Talos Victory Fund, LLC


348 Cambridge Street, #101


Woburn, MA 01801


e-mail: admin@talosvf.com


 


4.3  
Amendments. This Note and any provision hereof may only be amended by an instrument in writing signed by the Borrower and
the Holder. The term “Note” and all reference thereto, as used throughout this instrument, shall mean this instrument as
originally executed, or if later amended or supplemented, then as so amended or supplemented.


 


4.4  
Assignability. This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to be the benefit
of the Holder and its successors and assigns. The Borrower shall not assign this Note or any rights or obligations hereunder without
the prior written consent of the Holder. The Holder may assign its rights hereunder to any “accredited investor” (as defined
in Rule 501(a) of the 1933 Act) in a private transaction from the Holder or to any of its “affiliates”, as that term is defined
under the 1934 Act, without the consent of the Borrower. Notwithstanding anything in this Note to the contrary, this Note may be pledged
as collateral in connection with a bona fide margin account or other lending arrangement. The Holder and any assignee, by acceptance
of this Note, acknowledge and agree that following conversion of a portion of this Note, the unpaid and unconverted principal amount
of this Note represented by this Note may be less than the amount stated on the face hereof.


 


4.5  
Cost of Collection. If default is made in the payment of this Note, the Borrower shall pay the Holder hereof costs of collection,
including reasonable attorneys’ fees.


 


4.6  
Governing Law; Venue; Attorney’s Fees. This Note shall be governed by and construed in accordance with the laws of
the State of Delaware without regard to principles of conflicts of laws. Any action brought by either party against the other concerning
the transactions contemplated by this Note or any other agreement, certificate, instrument or document contemplated hereby shall be brought
only in the state courts located in the Commonwealth of Massachusetts or federal courts located in the Commonwealth of Massachusetts.
The Borrower hereby irrevocably waives any objection to jurisdiction and venue of any action instituted hereunder and shall not assert
any defense based on lack of jurisdiction or venue or based upon forum non conveniens. THE BORROWER HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS NOTE OR ANY TRANSACTIONS CONTEMPLATED HEREBY. Each party hereby irrevocably waives personal service of process
and consents to process being served in any suit, action or proceeding in connection with this Note or any other agreement, certificate,
instrument or document contemplated hereby or thereby by mailing a copy thereof via registered or certified mail or overnight delivery
(with evidence of delivery) to such party at the address in effect for notices to it under this Note and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any other manner permitted by law. The prevailing party in any action or dispute brought in connection with
this the Note or any other agreement, certificate, instrument or document contemplated hereby or thereby shall be entitled to recover
from the other party its reasonable attorney’s fees and costs.


 


 


 


 






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4.7
Certain Amounts. Whenever pursuant to this Note the Borrower is required to pay an amount in excess of the outstanding Principal
Amount (or the portion thereof required to be paid at that time) plus accrued and unpaid interest plus Default Interest on such interest,
the Borrower and the Holder agree that the actual damages to the Holder from the receipt of cash payment on this Note may be difficult
to determine and the amount to be so paid by the Borrower represents stipulated damages and not a penalty and is intended to compensate
the Holder in part for loss of the opportunity to convert this Note and to earn a return from the sale of shares of Common Stock acquired
upon conversion of this Note at a price in excess of the price paid for such shares pursuant to this Note. The Borrower and the Holder
hereby agree that such amount of stipulated damages is not plainly disproportionate to the possible loss to the Holder from the receipt
of a cash payment without the opportunity to convert this Note into shares of Common Stock.


 


4.8  
Purchase Agreement. The Company and the Holder shall be bound by the applicable terms of the Purchase Agreement and the
documents entered into in connection herewith and therewith.


 


4.9  
Notice of Corporate Events. Except as otherwise provided below, the Holder of this Note shall have no rights as a Holder
of Common Stock unless and only to the extent that it converts this Note into Common Stock. The Borrower shall provide the Holder with
prior notification of any meeting of the Borrower’s shareholders (and copies of proxy materials and other information sent to shareholders).
In the event of any taking by the Borrower of a record of its shareholders for the purpose of determining shareholders who are entitled
to receive payment of any dividend or other distribution, any right to subscribe for, purchase or otherwise acquire (including by way
of merger, consolidation, reclassification or recapitalization) any share of any class or any other securities or property, or to receive
any other right, or for the purpose of determining shareholders who are entitled to vote in connection with any change in control or
any proposed liquidation, dissolution or winding up of the Borrower, the Borrower shall mail a notice to the Holder, at least twenty
(20) days prior to the record date specified therein (or thirty (30) days prior to the consummation of the transaction or event, whichever
is earlier), of the date on which any such record is to be taken for the purpose of such dividend, distribution, right or other event,
and a brief statement regarding the amount and character of such dividend, distribution, right or other event to the extent known at
such time. The Borrower shall make a public announcement of any event requiring notification to the Holder hereunder substantially simultaneously
with the notification to the Holder in accordance with the terms of this Section 4.9.


 


4.10  
Remedies. The Borrower acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the
Holder, by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Borrower acknowledges that the remedy
at law for a breach of its obligations under this Note will be inadequate and agrees, in the event of a breach or threatened breach by
the Borrower of the provisions of this Note, that the Holder shall be entitled, in addition to all other available remedies at law or
in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any
breach of this Note and to enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and
without any bond or other security being required.


 


4.11  
Construction; Headings. This Note shall be deemed to be jointly drafted by the Company and all the Holder and shall not
be construed against any person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form
part of, or affect the interpretation of, this Note.


 


4.12  
Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever
claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at
any time hereafter in force, in connection with any action or proceeding that may be brought by the Holder in order to enforce any right
or remedy under this Note. Notwithstanding any provision to the contrary contained in this Note, it is expressly agreed and provided
that the total liability of the Company under this Note for payments which under the applicable law are in the nature of interest shall
not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing,
in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums which under the applicable
law in the nature of interest that the Company may be obligated to pay under this Note exceed such Maximum Rate. It is agreed that if
the maximum contract rate of interest allowed by applicable law and applicable to this Note is increased or decreased by statute or any
official governmental action subsequent to the Issue Date, the new maximum contract rate of interest allowed by law will be the Maximum
Rate applicable to this Note from the effective date thereof forward, unless such application is precluded by applicable law. If under
any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to the Holder with respect to indebtedness
evidenced by this the Note, such excess shall be applied by the Holder to the unpaid principal balance of any such indebtedness or be
refunded to the Company, the manner of handling such excess to be at the Holder’s election.


 


 


 


 






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4.13  
Severability. In the event that any provision of this Note is invalid or unenforceable under any applicable statute or
rule of law (including any judicial ruling), then such provision shall be deemed inoperative to the extent that it may conflict therewith
and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of any other provision of this Note.


 


4.14 
Terms of Future Financings. So long as this Note is outstanding, upon any issuance by the Borrower or any of its subsidiaries
of any security, or amendment to a security that was originally issued before the Issue Date, with any term that the Holder reasonably
believes is more favorable to the holder of such security or with a term in favor of the holder of such security that the Holder reasonably
believes was not similarly provided to the Holder in this Note, then (i) the Borrower shall notify the Holder of such additional or more
favorable term within three (3) business days of the issuance and/or amendment (as applicable) of the respective security, and (ii) such
term, at Holder’s option, shall become a part of the transaction documents with the Holder (regardless of whether the Borrower
complied with the notification provision of this Section 4.14). The types of terms contained in another security that may be more favorable
to the holder of such security include, but are not limited to, terms addressing prepayment rate, interest rates, and original issue
discounts. The provisions of this Section 4.14 shall not apply to secured indebtedness which is outstanding prior to the issuance
date of this Note.


 


4.15    
Dispute Resolution. In the case of a dispute as to the determination of the Conversion Price, Conversion Amount, any prepayment
amount or Default Amount, Issue, Closing or Maturity Date, the closing bid price, or fair market value (as the case may be) or the arithmetic
calculation of the Conversion Price or the applicable prepayment amount(s) (as the case may be), the Borrower or the Holder shall submit
the disputed determinations or arithmetic calculations via facsimile (i) within one (1) Trading Day after receipt of the applicable notice
giving rise to such dispute to the Borrower or the Holder or (ii) if no notice gave rise to such dispute, at any time after the Holder
learned of the circumstances giving rise to such dispute. If the Holder and the Borrower are unable to agree upon such determination
or calculation within one (1) Trading Day of such disputed determination or arithmetic calculation (as the case may be) being submitted
to the Borrower or the Holder, then the Borrower shall, within one (1) Trading Day, submit (a) the disputed determination of the Conversion
Price, the closing bid price, the or fair market value (as the case may be) to an independent, reputable investment bank selected by
the Borrower and approved by the Holder or (b) the disputed arithmetic calculation of the Conversion Price, Conversion Amount, any prepayment
amount or Default Amount, to an independent, outside accountant selected by the Holder that is reasonably acceptable to the Borrower.
The Borrower shall cause at its expense the investment bank or the accountant to perform the determinations or calculations and notify
the Borrower and the Holder of the results no later than one (1) Trading Day from the time it receives such disputed determinations or
calculations. Such investment bank’s or accountant’s determination or calculation shall be binding upon all parties absent
demonstrable error.


 


4.16 Interim
Payment. In addition to all other obligations under this Note, the Borrower shall pay $112,500.00 in cash to the Holder on or
before March 18, 2022 (the "Interim Payment”) for the repayment of the OID (equal to $56,250.00) and the guaranteed
interest (equal to $56,250.00) under the Note.


 


 


 


 


[signature page follows]


 


 


 


 






    	 	16	 



     

    

 


 


 


 


IN WITNESS WHEREOF, Borrower
has caused this Note to be signed in its name by its duly authorized officer on September 20, 2021.


 


MOBIQUITY TECHNOLOGIES, INC.


 


By:   /s/
Dean Julia                                       


Name: Dean Julia


Title: Chief
Executive Officer 


 


 


 


 


 


 


 


 






    	 	17	 



     

    

 


 


EXHIBIT A -- NOTICE OF CONVERSION


 


The undersigned
hereby elects to convert $______________ principal amount of the Note (defined below) into that number of shares of Common Stock to be issued
pursuant to the conversion of the Note (“Common Stock”) as set forth below, of MOBIQUITY TECHNOLOGIES, INC., a New
York corporation (the “Borrower”), according to the conditions of the promissory note of the Borrower dated as of September
20, 2021 (the “Note”), as of the date written below. No fee will be charged to the Holder for any conversion, except for transfer
taxes, if any.


 


Box Checked as to applicable instructions:


 


		☐	The Borrower shall electronically transmit the
Common Stock issuable pursuant to this Notice of Conversion to the account of the undersigned or its nominee with DTC through its Deposit
Withdrawal Agent Commission system (“DWAC Transfer”).



 


Name of DTC Prime Broker: Account Number:


 


		☐	The undersigned hereby requests that the Borrower
issue a certificate or certificates for the number of shares of Common Stock set forth below (which numbers are based on the Holder’s
calculation attached hereto) in the name(s) specified immediately below or, if additional space is necessary, on an attachment hereto:



 


 





	 	Date of Conversion:	__________________
	 	Applicable Conversion Price:	$
	 	Number of Shares of Common Stock to be Issued Pursuant to Conversion of the Note	 

      __________________

	 	Amount of Principal Balance Due remaining Under the Note
after this conversion:	 

      __________________

	 	 	 



 


By:


Name:


Title:


Date:


 


 


 


 


 


 






    	 	18