Exhibit 10.2





 


[FORM OF SENIOR SECURED CONVERTIBLE NOTE]


 


NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN OR WILL BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES MAY BE OFFERED
FOR SALE, SOLD, PLEDGED ASSIGNED OR TRANSFERRED, DIRECTLY OR INDIRECTLY, ONLY (A) TO THE COMPANY, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, (C) IN COMPLIANCE WITH
THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT IN ACCORDANCE WITH RULE (I) 144 OR (II) RULE 144A THEREUNDER,
IF AVAILABLE, AND IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS PROVIDED THAT THE HOLDER HAS FURNISHED TO THE COMPANY REASONABLE
ASSURANCES, IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT, THAT REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES NOT REQUIRE REGISTRATION UNDER THE SECURITIES
ACT OR ANY APPLICABLE STATE LAWS AND REGULATIONS GOVERNING THE OFFER AND SALE OF SECURITIES PROVIDED THAT THE HOLDER HAS FURNISHED TO
THE COMPANY AN OPINION OF COUNSEL OF RECOGNIZED STANDING IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. 


 


ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY
REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iii) AND 19(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY,
THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(iii)
OF THIS NOTE.


 


THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE
DISCOUNT (“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), JOHN FOWLE, A REPRESENTATIVE OF THE COMPANY WILL,
BEGINNING TEN DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED
IN TREASURY REGULATION §1.1275-3(b)(1)(i). JOHN FOWLE MAY BE REACHED AT TELEPHONE NUMBER (720) 710-3146.


 






     


     


    

 


Akerna
Corp.


 


Senior
Secured Convertible Note


 


	

    Issuance Date: October 5, 2021
	Original Principal Amount: U.S. $[●]


 


FOR VALUE RECEIVED,
Akerna Corp., a Delaware corporation (the “Company”), hereby promises to pay to the order of [BUYER] or its registered
assigns (“Holder”) the amount set forth above as the Original Principal Amount (as reduced pursuant to the terms hereof
pursuant to redemption, conversion or otherwise, the “Principal”) when due, whether upon the Maturity Date, on any
Installment Date with respect to the Installment Amount due on such Installment Date (each as defined below), or upon acceleration, redemption
or otherwise (in each case in accordance with the terms hereof) and, upon the occurrence and continuance of an Event of Default, to pay
interest (“Interest”) on any outstanding Principal at the applicable Default Rate (as defined below) at any such time
as such Interest shall be due and payable hereunder, whether upon the Maturity Date, on any Installment Date with respect to the Installment
Amount due on such Installment Date, or upon acceleration, conversion, redemption or otherwise (in each case in accordance with the terms
hereof). This Senior Secured Convertible Note (including all Senior Secured Convertible Notes issued in exchange, transfer or replacement
hereof, together with all amendments hereto and thereto this “Note”) is one of an issue of Senior Secured Convertible
Notes issued pursuant to the Securities Purchase Agreement, dated as of October 5, 2021 (the “Subscription Date”),
by and among the Company and the investors (the “Buyers”) referred to therein, as amended from time to time (collectively,
the “Notes”, and such other Senior Secured Convertible Notes, the “Other Notes”). Certain capitalized
terms used herein are defined in Section 32.


 


1. PAYMENTS
OF PRINCIPAL. On each Installment Date, the Company shall pay to the Holder an amount equal to the Installment Amount due on such
Installment Date in accordance with Section 8, and such portion of the Principal hereunder included in such Installment Amount shall be
satisfied upon the payment or conversion of such Installment Amount (with any partial satisfaction (whether in cash or Common Stock hereunder,
as applicable) of such Installment Amount being applied last to any Principal included in such Installment Amount). On the Maturity Date,
the Company shall pay to the Holder an amount in cash (excluding any amounts paid in shares of Common Stock on the Maturity Date in accordance
with Section 8) representing 110% of all outstanding Principal and 100% of all accrued and unpaid Interest and accrued and unpaid Late
Charges (as defined in Section 25(c)) on such Principal and Interest. Other than as specifically permitted by this Note, the Company may
not prepay any portion of the outstanding Principal, accrued and unpaid Interest or accrued and unpaid Late Charges (as defined in Section
25(c)) on Principal and Interest, if any.


 


2. INTEREST;
DEFAULT RATE. No Interest shall accrue hereunder unless and until an Event of Default (as defined below) has occurred. From and after
the occurrence and during the continuance of any Event of Default, Interest shall accrue hereunder at fifteen percent (15.0%) per annum
(the “Default Rate”), shall be computed on the basis of a 360-day year and twelve 30-day months (and for a partial
month based on the actual number of days elapsed), and shall be payable in arrears on each Interest Date (as defined below) in cash (or,
if such Interest Date is an Installment Date, in accordance with Section 8) and, if unpaid on an Interest Date, shall compound hereunder.
In addition and without duplication, accrued and unpaid Interest, if any, shall also be payable by way of inclusion of such Interest in
the Conversion Amount (as defined below) on each Conversion Date (as defined below) in accordance with Section 3(b)(i), upon any redemption
in accordance with Section 12 or any required redemption upon any Bankruptcy Event of Default (as defined in Section 4(a) below). In the
event that such Event of Default is subsequently cured or waived (and no other Event of Default then exists (including, without limitation,
for the Company’s failure to pay such Interest at the Default Rate on the applicable Interest Date)), Interest shall cease to accrue
hereunder as of the date of such cure or waiver; provided that the Interest as calculated and unpaid during the continuance of such Event
of Default shall continue to apply to the extent relating to the days after the occurrence of such Event of Default through and including
the date of such cure or waiver of such Event of Default.


 


3. CONVERSION
OF NOTES. At any time after the issuance date specified on the face of this Note (the “Issuance Date”), this Note
shall be convertible into validly issued, fully paid and non-assessable shares of Common Stock (as defined below), on the terms and conditions
set forth in this Section 3.


 






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(a) Conversion
Right. Subject to the provisions of Section 3(d), at any time or times on or after the Issuance Date, the Holder shall be entitled
to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into validly issued, fully paid and non-assessable
shares of Common Stock in accordance with Section 3(c), at the Conversion Rate (as defined below). The Company shall not issue any fraction
of a share of Common Stock upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock,
the Company shall round such fraction of a share of Common Stock up to the nearest whole share. The Company shall pay any and all transfer,
stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of the Transfer Agent (as defined
below)) that may be payable with respect to the issuance and delivery of Common Stock upon conversion of any Conversion Amount.


 


(b) Conversion
Rate. The number of shares of Common Stock issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall be determined
by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).


 


(i) “Conversion
Amount” means the sum of (x) portion of the Principal to be converted, redeemed or otherwise with respect to which this determination
is being made and (y) all accrued and unpaid Interest with respect to such portion of the Principal amount and accrued and unpaid Late
Charges with respect to such portion of such Principal and such Interest, if any.


 


(ii) “Conversion
Price” means, as of any Conversion Date or other date of determination, $4.05, subject to adjustment as provided herein.


 


(c) Mechanics
of Conversion.


 


(i) Optional
Conversion. To convert any Conversion Amount into shares of Common Stock on any date (a “Conversion Date”), the
Holder shall deliver (whether via electronic mail or otherwise), for receipt on or prior to 11:59 p.m., New York time, on such date, a
copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion Notice”)
to the Company. For the avoidance of doubt, (I) a Conversion Notice shall only be validly delivered hereunder in connection with an election
therein by the Holder to receive such underlying shares of Common Stock electronically through DTC (as defined below) if both (x) the
144 Rep Condition (as defined below) is satisfied (or the Holder delivers an updated Rule 144 Rep Letter (as defined in the Securities
Purchase Agreement) to the Company) and (y) such Conversion Notice contains a DWAC Control Number valid on such date of issuance and (II)
unless the Holder notifies the Company in writing, the Company is permitted to presume that the Standby 144 Representation Letter (or
any successor Rule 144 Rep Letter) shall remain in effect and is valid for such conversion by the Holder hereunder. If required by Section
3(c)(iii), within two (2) Trading Days following a conversion of this Note as aforesaid, the Holder shall surrender this Note to a nationally
recognized overnight delivery service for delivery to the Company (or an indemnification undertaking with respect to this Note in the
case of its loss, theft or destruction as contemplated by Section 19(b)). On or before the first (1st) Trading Day following the date
of receipt of a Conversion Notice, the Company shall transmit by electronic mail an acknowledgment of confirmation of receipt of such
Conversion Notice and representation as to whether such shares of Common Stock may then be resold pursuant to Rule 144, provided that
the Standby 144 Representation Letter (as defined in the Securities Purchase Agreement) remains valid and effective at such time (or the
Holder delivers a valid and effective Rule 144 Rep Letter (attached as Exhibit D to the Securities Purchase Agreement) on or prior
to such time of determination)(collectively, the “144 Rep Condition”), or an effective and available registration statement,
in the form attached hereto as Exhibit II, to the Holder and the Company’s transfer agent (the “Transfer Agent”),
which confirmation shall constitute an instruction to the Transfer Agent to process such Conversion Notice in accordance with the terms
herein. On or before the second (2nd) Trading Day following the date on which the Company has received a Conversion Notice (or such earlier
date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade initiated on the applicable
Conversion Date of such shares of Common Stock issuable pursuant to such Conversion Notice) (the “Share Delivery Deadline”),
the Company shall (1) provided that the Transfer Agent is participating in The Depository Trust Company’s (“DTC”)
Fast Automated Securities Transfer Program (“FAST”) and the 144 Rep Condition is satisfied, credit such aggregate number
of shares of Common Stock to which the Holder shall be entitled pursuant to such conversion to the Holder’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at Custodian system or (2) if the Transfer Agent is not participating in FAST
or the 144 Rep Condition is not satisfied, upon the request of the Holder, issue and deliver (via reputable overnight courier) to the
address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, for the number of
shares of Common Stock to which the Holder shall be entitled pursuant to such conversion (delivery being deemed to occur upon delivery
of the certificate to such reputable overnight courier). If this Note is physically surrendered for conversion pursuant to this Section
3(c)(i) and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted, then
the Company shall as soon as practicable and in no event later than two (2) Business Days after receipt of this Note and at its own expense,
issue and deliver to the Holder (or its designee) a new Note (in accordance with Section 19(d)) representing the outstanding Principal
not converted. The Person or Persons entitled to receive the shares of Common Stock issuable pursuant to the applicable Conversion Notice
shall be treated for all purposes as the record holder or holders of such shares of Common Stock on the Conversion Date. In the event
of a partial conversion of this Note pursuant hereto, the Principal amount converted shall be deducted from the Installment Amount(s)
relating to the Installment Date(s) as set forth in the applicable Conversion Notice. Notwithstanding anything to the contrary contained
in this Note or the Registration Rights Agreement, after the effective date of the Registration Statement (as defined in the Registration
Rights Agreement) and prior to the Holder’s receipt of the notice of a Grace Period (as defined in the Registration Rights Agreement),
the Company shall cause the Transfer Agent to deliver unlegended shares of Common Stock to the Holder (or its designee) in connection
with any sale of Registrable Securities (as defined in the Registration Rights Agreement) with respect to which the Holder has entered
into a contract for sale, and delivered a copy of the prospectus included as part of the particular Registration Statement to the extent
applicable, and for which the Holder has not yet settled.


 






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(ii) Company’s
Failure to Timely Convert. If the Company shall fail, for any reason or for no reason, on or prior to the applicable Share Delivery
Deadline, either (I) if the Transfer Agent is not participating in FAST, to issue and deliver to the Holder (or its designee) a certificate
for the number of shares of Common Stock to which the Holder is entitled and register such shares of Common Stock on the Company’s
share register or, if the Transfer Agent is participating in FAST, to credit the balance account of the Holder or the Holder’s designee
with DTC for such number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion of this Note (as
the case may be) or (II) if the Registration Statement covering the resale of the shares of Common Stock that are the subject of the Conversion
Notice (the “Unavailable Conversion Shares”) is not available for the resale of such Unavailable Conversion Shares
and the Company fails to promptly, but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify
the Holder and (y) deliver the shares of Common Stock electronically without any restrictive legend by crediting such aggregate number
of shares of Common Stock to which the Holder is entitled pursuant to such conversion to the Holder’s or its designee’s balance
account with DTC through its Deposit/Withdrawal At Custodian system (each event described in the immediately foregoing clause (II) is
hereinafter referred as a “Notice Failure” and together with the event described in clause (I) above (each, a “Conversion
Failure”), then, in addition to all other remedies available to the Holder, (1) the Company shall pay in cash to the Holder
for each Trading Day after such Share Delivery Deadline that the issuance of such shares of Common Stock is not timely effected an amount
equal to 1% of the product of (A) the sum of the number of shares of Common Stock not issued to the Holder on or prior to the Share Delivery
Deadline and to which the Holder is entitled, multiplied by (B) any trading price of the Common Stock selected by the Holder in writing
as in effect at any time during the period beginning on the applicable Conversion Date and ending on the applicable Share Delivery Deadline,
payable in arrears for the aggregate amount due for the prior week on the first Trading Day of the subsequent week (each, a “Delivery
Failure Payment”) and (2) the Holder, upon written notice to the Company, may void its Conversion Notice with respect to, and
retain or have returned (as the case may be) any portion of this Note that has not been converted pursuant to such Conversion Notice,
provided that the voiding of a Conversion Notice shall not affect the Company’s obligations to make any payments which have accrued
prior to the date of such notice pursuant to this Section 3(c)(ii) or otherwise. In addition to the foregoing, if on or prior to the Share
Delivery Deadline either (A) if the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver to the Holder
(or its designee) a certificate and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent
is participating in FAST, the Transfer Agent shall fail to credit the balance account of the Holder or the Holder’s designee with
DTC for the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder or pursuant
to the Company’s obligation pursuant to clause (II) below or (B) a Notice Failure occurs, and if on or after such Share Delivery
Deadline the Holder purchases (in an open market transaction or otherwise) shares of Common Stock corresponding to all or any portion
of the number of shares of Common Stock issuable upon such conversion that the Holder is entitled to receive from the Company and has
not received from the Company in connection with such Conversion Failure or Notice Failure, as applicable (each, a “Buy-In”),
then, in addition to all other remedies available to the Holder, the Company shall, within two (2) Business Days after receipt of the
Holder’s request and in the Holder’s discretion, either: (I) pay cash to the Holder in an amount equal to the Holder’s
total purchase price (including brokerage commissions and other reasonable out-of-pocket expenses, if any) for the shares of Common Stock
so purchased (including, without limitation, by any other Person in respect, or on behalf, of the Holder) (each, a “Buy-In Price”),
at which point the Company’s obligation to so issue and deliver such certificate (and to issue such shares of Common Stock) or credit
the balance account of such Holder or such Holder’s designee, as applicable, with DTC for the number of shares of Common Stock to
which the Holder is entitled upon the Holder’s conversion hereunder (as the case may be) (and to issue such shares of Common Stock)
shall terminate, or (II) promptly honor its obligation to so issue and deliver to the Holder a certificate or certificates representing
such shares of Common Stock or credit the balance account of such Holder or such Holder’s designee, as applicable, with DTC for
the number of shares of Common Stock to which the Holder is entitled upon the Holder’s conversion hereunder (as the case may be)
and pay cash to the Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (x) such number of shares
of Common Stock to which such Buy-In relates multiplied by (y) the lowest Closing Sale Price of the Common Stock on any Trading Day during
the period commencing on the applicable Conversion Date and ending on the date of such issuance and payment under this clause (II) (each,
a “Buy-In Payment Amount”). Nothing shall limit the Holder’s right to pursue any other remedies available to
it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief with respect
to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver such shares
of Common Stock) upon the conversion of this Note as required pursuant to the terms hereof.


 






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(iii) Registration;
Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and addresses
of the holders of each Note and the principal amount of the Notes held by such holders (the “Registered Notes”). The
entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company and the holders of the Notes
shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes (including, without limitation,
the right to receive payments of Principal and Interest hereunder) notwithstanding notice to the contrary. A Registered Note may be assigned,
transferred or sold in whole or in part only by registration of such assignment or sale on the Register. Upon its receipt of a written
request to assign, transfer or sell all or part of any Registered Note by the holder thereof that is assigned, transferred or sold in
compliance with the terms and conditions set forth herein, the Company shall record the information contained therein in the Register
and issue one or more new Registered Notes in the same aggregate principal amount as the principal amount of the surrendered Registered
Note to the designated assignee or transferee pursuant to Section 19, provided that if the Company does not so record an assignment,
transfer or sale (as the case may be) of all or part of any Registered Note that is assigned, transferred or sold in compliance with the
terms and conditions set forth herein within two (2) Business Days of such a request, then the Register shall be automatically deemed
updated to reflect such assignment, transfer or sale (as the case may be). Notwithstanding anything to the contrary set forth in this
Section 3, following conversion of any portion of this Note in accordance with the terms hereof, the Holder shall not be required
to physically surrender this Note to the Company unless (A) the full Conversion Amount represented by this Note is being converted (in
which event this Note shall be delivered to the Company following conversion thereof as contemplated by Section 3(c)(i)) or (B) the Holder
has provided the Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this
Note upon physical surrender of this Note. The Company shall maintain records showing the Principal, Interest and Late Charges converted
and/or paid (as the case may be) and the dates of such conversions and/or payments (as the case may be) or shall use such other method,
reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon conversion. If the Company
does not update the Register to record such Principal, Interest and Late Charges converted and/or paid (as the case may be) and the dates
of such conversions and/or payments (as the case may be) within two (2) Business Days of such occurrence, then the Register shall be automatically
deemed updated to reflect such occurrence.


 


(iv) Pro
Rata Conversion; Disputes. In the event that the Company receives a Conversion Notice from more than one holder of Notes for the same
Conversion Date and the Company can convert some, but not all, of such portions of the Notes submitted for conversion, the Company, subject
to Section 3(d), shall convert from each holder of Notes electing to have Notes converted on such date a pro rata amount of such holder’s
portion of its Notes submitted for conversion based on the principal amount of Notes submitted for conversion on such date by such holder
relative to the aggregate principal amount of all Notes submitted for conversion on such date. In the event of a dispute as to the number
of shares of Common Stock issuable to the Holder in connection with a conversion of this Note, the Company shall issue to the Holder the
number of shares of Common Stock not in dispute and resolve such dispute in accordance with Section 24. Notwithstanding anything herein
to the contrary, the Holder shall not have the power to vote or to transfer any shares of Common Stock subject to bona fide dispute.


 






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(d) Limitations
on Conversions.


 


(i) Beneficial
Ownership. The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right to convert
any portion of this Note pursuant to the terms and conditions of this Note and any such conversion shall be null and void and treated
as if never made, to the extent that after giving effect to such conversion, the Holder together with the other Attribution Parties collectively
would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately
after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially
owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other
Attribution Parties plus the number of shares of Common Stock issuable upon conversion of this Note with respect to which the determination
of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) conversion of the remaining,
nonconverted portion of this Note beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any convertible notes
or convertible preferred stock or warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on
conversion or exercise analogous to the limitation contained in this Section 3(d)(i). For purposes of this Section 3(d)(i), beneficial
ownership shall be calculated in accordance with Section 13(d) of the 1934 Act. For purposes of determining the number of outstanding
shares of Common Stock the Holder may acquire upon the conversion of this Note without exceeding the Maximum Percentage, the Holder may
rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K,
Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public
announcement by the Company or (z) any other written notice by the Company or the Transfer Agent, if any, setting forth the number of
shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion
Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share
Number, the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that
such Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 3(d)(i),
to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of shares of Common Stock to be purchased pursuant
to such Conversion Notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1)
Business Day confirm orally and in writing or by electronic mail to the Holder the number of shares of Common Stock then outstanding.
In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Note, by the Holder and any other Attribution Party since the date as of which the Reported
Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon conversion of this
Note results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum
Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the 1934 Act), the number of shares
so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage
(the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have
the power to vote or to transfer the Excess Shares. Upon delivery of a written notice to the Company, the Holder may from time to time
increase (with such increase not effective until the sixty-first (61st) day after delivery of such notice) or decrease the
Maximum Percentage to any other percentage not in excess of 9.99% as specified in such notice; provided that (i) any such increase in
the Maximum Percentage will not be effective until the sixty-first (61st) day after such notice is delivered to the Company
and (ii) any such increase or decrease will apply only to the Holder and the other Attribution Parties and not to any other holder of
Notes that is not an Attribution Party of the Holder. For purposes of clarity, the shares of Common Stock issuable pursuant to the terms
of this Note in excess of the Maximum Percentage shall not be deemed to be beneficially owned by the Holder for any purpose including
for purposes of Section 13(d) or Rule 16a-1(a)(1) of the 1934 Act. No prior inability to convert this Note pursuant to this paragraph
shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility.
The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of
this Section 3(d)(i) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent
with the intended beneficial ownership limitation contained in this Section 3(d)(i) or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitation contained in this paragraph may not be waived and shall apply to a successor
holder of this Note.


 






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(ii) Principal
Market Regulation. The Company shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the
terms of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the
Company may issue upon conversion of the Notes or otherwise pursuant to the terms of this Note without breaching the Company’s obligations
under the rules or regulations of the Principal Market (the number of shares which may be issued without violating such rules and regulations,
including rules related to the aggregate of offerings under NASDAQ Listing Rule 5635(d), the “Exchange Cap”), except
that such limitation shall not apply in the event that the Company (A) obtains the approval of its stockholders as required by the applicable
rules of the Principal Market for issuances of shares of Common Stock in excess of such amount or (B) obtains a written opinion from counsel
to the Company that such approval is not required, which opinion shall be reasonably satisfactory to the Holder. Until such approval or
such written opinion is obtained, no Buyer shall be issued in the aggregate, upon conversion of any Notes or otherwise pursuant to the
terms of the Notes, shares of Common Stock in an amount greater than the product of (i) the Exchange Cap as of the Issuance Date multiplied
by (ii) the quotient of (1) the original principal amount of Notes issued to such Buyer pursuant to the Securities Purchase Agreement
on the Closing Date (as defined in the Securities Purchase Agreement) divided by (2) the aggregate original principal amount of all Notes
issued to the Buyers pursuant to the Securities Purchase Agreement on the Closing Date (with respect to each Buyer, the “Exchange
Cap Allocation”). In the event that any Buyer shall sell or otherwise transfer any of such Buyer’s Notes, the transferee
shall be allocated a pro rata portion of such Buyer’s Exchange Cap Allocation with respect to such portion of such Notes so transferred,
and the restrictions of the prior sentence shall apply to such transferee with respect to the portion of the Exchange Cap Allocation so
allocated to such transferee. Upon conversion in full of a holder’s Notes, the difference (if any) between such holder’s Exchange
Cap Allocation and the number of shares of Common Stock actually issued to such holder upon such holder’s conversion in full of
such Notes shall be allocated, to the respective Exchange Cap Allocations of the remaining holders of Notes on a pro rata basis in proportion
to the shares of Common Stock underlying the Notes then held by each such holder of Notes. At any time after the Stockholder Meeting Deadline
(as defined in the Securities Purchase Agreement), in the event that the Company is prohibited from issuing shares of Common Stock pursuant
to this Section 3(d)(ii)(the “Exchange Cap Shares”), the Company shall pay cash in exchange for the cancellation of
such portion of this Note convertible into such Exchange Cap Shares at a price equal to the sum of (i) the product of (x) such number
of Exchange Cap Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on
the date the Holder delivers the applicable Conversion Notice with respect to such Exchange Cap Shares to the Company and ending on the
date of such issuance and payment under this Section 3(d)(ii) and (ii) to the extent of any Buy-In related thereto, any Buy-In Payment
Amount, any brokerage commissions and other out-of-pocket expenses, if any, of the Holder incurred in connection therewith (collectively,
the “Exchange Cap Share Cancellation Amount”).


 


(iii) For
the avoidance of doubt, the failure by the Company to deliver shares of Common Stock to the Holder in compliance with this Section 3(d)
shall not be an Event of Default hereunder, but the failure to timely pay any Exchange Cap Share Cancellation Amount when due hereunder
shall be an Event of Default hereunder.


 


(e) Right
of Alternate Conversion Upon an Event of Default.


 


(i) General.
At any time during an Event of Default Redemption Right Period, the Holder may, by delivery of written notice to the Company, elect to
cause all, or any part, of the Conversion Amount of this Note to be eligible to be converted, at any time thereafter, in an Alternate
Conversion (as defined below) pursuant to this Section 3(e) (such portion of the Conversion Amount subject to such election, each, an
“Available Alternate Conversion Amount”, and such date of election, each an “Alternate Conversion Availability
Election Date”). Subject to Section 3(d), from and after any such Alternate Conversion Availability Election Date (regardless
of whether such Event of Default has been cured or the Company has delivered an Event of Default Notice to the Holder or if the Holder
has delivered an Event of Default Redemption Notice to the Company or otherwise notified the Company that an Event of Default has occurred),
the Holder may, at the Holder’s option, convert (each, an “Alternate Conversion”, and the date of delivery of
a Conversion Notice to the Company in accordance with Section 3(c) with respect to such Alternate Conversion, each, an “Alternate
Conversion Date”) all, or any part of, the aggregate Available Alternate Conversion Amount then remaining (such portion of the
Available Alternate Conversion Amount subject to such Alternate Conversion, the “Alternate Conversion Amount”) into
shares of Common Stock at the Alternate Conversion Price.


 






    7


     


    

 


(ii) Mechanics
of Alternate Conversion. On any Alternate Conversion Date, the Holder may voluntarily convert any Alternate Conversion Amount pursuant
to Section 3(c) (with “Alternate Conversion Price” replacing “Conversion Price” for all purposes hereunder with
respect to such Alternate Conversion and with “Redemption Premium of the Conversion Amount” replacing “Conversion Amount”
in clause (x) of the definition of Conversion Rate above with respect to such Alternate Conversion) by designating in the Conversion Notice
delivered pursuant to this Section 3(e) of this Note that the Holder is electing to use the Alternate Conversion Price for such conversion;
provided that in the event of the Conversion Floor Price Condition, on the applicable Alternate Conversion Date, with respect to such
portion of the Alternate Conversion Amount that is being settled in shares of Common Stock hereunder, the Company shall also deliver to
the Holder the applicable Alternate Conversion Floor Amount. Notwithstanding anything to the contrary in this Section 3(e), but subject
to Section 3(d), until the Company delivers shares of Common Stock representing the applicable Alternate Conversion Amount to the
Holder, such Alternate Conversion Amount may be converted by the Holder into shares of Common Stock pursuant to Section 3(c) without regard
to this Section 3(e). Notwithstanding the foregoing, if the Event of Default Notice (as defined below) with respect to such applicable
Event of Default Redemption Right Period, pursuant to which the Alternate Conversion Amount was elected, irrevocably specifies that all,
or any part, of any Alternate Conversion Amount is to be satisfied in cash and is delivered both (x) either (A) concurrently with the
Event of Default Notice or (B) if the Holder becomes aware of an Event of Default prior to delivery of an Event of Default Notice within
two (2) Trading Days of the Holder notifying the Company of the Event of Default and (y) at least one Trading Day prior to such Alternate
Conversion Date, then, in lieu of the shares of Common Stock to be issued pursuant to this Section 3(e), with respect to the Alternate
Cash Percentage (as defined below) of such applicable Alternate Conversion Amount (each, an “Alternate Redemption Amount”),
the Company shall pay to the Holder within two (2) Trading Days of such Alternate Conversion Date a cash amount equal to the aggregate
Event of Default Redemption Price with respect to such Alternate Redemption Amount and the applicable Alternate Conversion Amount for
such Alternate Conversion shall be reduced by the Alternate Redemption Amount for such Alternate Conversion Amount, if any; provided,
that if all Events of Default that caused such Event of Default Redemption Right Period with respect to which an Alternate Conversion
Amount was elected to occur are waived by the Required Holders hereunder prior to an applicable Alternate Conversion Date (and no other
Events of Default then exist), no cash amount shall be payable with respect to such Alternate Conversion (but any such waiver shall not
apply to the delivery of any shares of Common Stock in any Alternate Conversion hereunder prior to the effective time of such waiver).


 


4. RIGHTS
UPON EVENT OF DEFAULT.


 


(a) Event
of Default. Each of the following events shall constitute an “Event of Default” and each of the events in clauses
(ix), (x) and (xi) shall constitute a “Bankruptcy Event of Default”:


 


(i) the
failure of the applicable Registration Statement (as defined in the Registration Rights Agreement) to be filed with the SEC on or prior
to the date that is five (5) days after the applicable Filing Deadline (as defined in the Registration Rights Agreement) or the failure
of the applicable Registration Statement to be declared effective by the SEC on or prior to the date that is five (5) days after the applicable
Effectiveness Deadline (as defined in the Registration Rights Agreement);


 


(ii) while
the applicable Registration Statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement,
(x) the effectiveness of the applicable Registration Statement lapses for any reason (including, without limitation, the issuance of a
stop order) or (y) such Registration Statement (or the prospectus contained therein) is unavailable to any holder of Registrable Securities
(as defined in the Registration Rights Agreement) for sale of all of such holder’s Registrable Securities in accordance with the
terms of the Registration Rights Agreement, and such lapse or unavailability continues for a period of five (5) consecutive days or for
more than an aggregate of ten (10) days in any 365-day period (excluding days during an Allowable Grace Period (as defined in the Registration
Rights Agreement)); provided, that an Event of Default arising pursuant to this Section 4(a)(ii) shall not be deemed to exist if at such
time of determination all Registrable Securities are then eligible for resale by the Holder pursuant to Rule 144 (as defined in the Securities
Purchase Agreement) without restriction (including, without limitation, volume restrictions) and either (A) without the need for current
public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (B) if no Current Public Information Failure then
exists.


 


(iii) the
suspension from trading or the failure of the Common Stock to be trading or listed (as applicable) on an Eligible Market for a period
of five (5) consecutive Trading Days;


 


(iv) the
Company’s (A) failure to cure a Conversion Failure by delivery of the required number of shares of Common Stock within five (5)
Trading Days after the applicable Conversion Date or (B) notice, written or oral, to any holder of the Notes, including, without limitation,
by way of public announcement or through any of its agents, at any time, of its intention not to comply, as required, with a request for
conversion of any Notes into shares of Common Stock that is requested in accordance with the provisions of the Notes, other than pursuant
to Section 3(d);


 


(v) except
to the extent the Company is in compliance with Section 11(b) below, at any time following the tenth (10th) consecutive day
that the Holder’s Authorized Share Allocation (as defined in Section 11(a) below) is less than the number of shares of Common Stock
that the Holder would be entitled to receive upon a conversion of the full Conversion Amount of this Note at the Floor Price as of such
time of determination (without regard to any limitations on conversion set forth in Section 3(d) or otherwise);


 






    8


     


    

 


(vi) the
Company’s failure to pay to the Holder any amount of Principal, Interest, Late Charges or other amounts when and as due under this
Note (including, without limitation, the Company’s failure to pay any redemption payments or amounts hereunder) or any other Transaction
Document (as defined in the Securities Purchase Agreement) or any other agreement, document, certificate or other instrument delivered
in connection with the transactions contemplated hereby and thereby, except, in the case of a failure to pay Interest and Late Charges
when and as due, in which case only if such failure remains uncured for a period of at least three (3) Trading Days;


 


(vii) the
Company fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the Holder upon conversion of
this Note as and when required by this Note or the Securities Purchase Agreement, unless otherwise then prohibited by applicable federal
securities laws, and any such failure remains uncured for at least three (3) Trading Days;


 


(viii) the
occurrence of any default under, redemption of or acceleration prior to maturity of at least an aggregate of $50,000 of Indebtedness (as
defined in the Securities Purchase Agreement) of the Company or any of its Subsidiaries, other than (A) repayment of the SBA Loan (as
defined in the Securities Purchase Agreement) in accordance with Section 4(dd) of the Securities Purchase Agreement and (B) with respect
to any Other Notes in which case only if such default, redemption or acceleration, as applicable, remains uncured for a period of at least
three (3) Trading Days and other than Accelerations and accelerations of Installment Amounts pursuant to Section 8(d) of any Other Notes;


 


(ix) bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against
the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not be dismissed or stayed
within forty-five (45) days of their initiation;


 


(x) the
commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy,
insolvency, reorganization or other similar law or the commencement by the Company or any Subsidiary of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by the Company or any Subsidiary to the entry of a decree, order, judgment or other
similar document in respect of the Company or any Subsidiary in an involuntary case or proceeding under any applicable federal, state
or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal,
state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any substantial
part of its property, or the making by it of an assignment for the benefit of creditors, or the execution of a composition of debts, or
the occurrence of any other similar federal, state or foreign proceeding, or the admission by it in writing of its inability to pay its
debts generally as they become due, the taking of corporate action by the Company or any Subsidiary in furtherance of any such action
or the taking of any action by any Person to commence a Uniform Commercial Code foreclosure sale or any other similar action under federal,
state or foreign law which is not dismissed or stayed within forty-five (45) days of its initiation;


 






    9


     


    

 


(xi) the
entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of a voluntary
or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar
law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or insolvent, or approving
as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Company
or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order, judgment or other similar document appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of its affairs, and in each of the foregoing clauses (i),
(ii) and (iii) any such decree, order, judgment or other similar document remains unstayed and in effect for a period of forty-five (45)
consecutive days;


 


(xii) a
final judgment or judgments for the payment of money aggregating in excess of $50,000 are rendered against the Company and/or any of its
Subsidiaries and which judgments are not, within thirty (30) days after the entry thereof, bonded, discharged, settled or stayed pending
appeal, or are not discharged within thirty (30) days after the expiration of such stay; provided, however, any judgment which is covered
by insurance or an indemnity from a credit worthy party shall not be included in calculating the $50,000 amount set forth above so long
as the Company provides the Holder a written statement from such insurer or indemnity provider (which written statement shall be reasonably
satisfactory to the Holder) to the effect that such judgment is covered by insurance or an indemnity and the Company or such Subsidiary
(as the case may be) will receive the proceeds of such insurance or indemnity within thirty (30) days of the issuance of such judgment;


 


(xiii) the
Company and/or any Subsidiary, individually or in the aggregate, either (i) fails to pay, when due, as extended by any applicable grace
period, any payment with respect to any Indebtedness in excess of $50,000 due to any third party (other than, with respect to unsecured
Indebtedness only, payments contested by the Company and/or such Subsidiary (as the case may be) in good faith by proper proceedings and
with respect to which adequate reserves have been set aside for the payment thereof in accordance with GAAP) or is otherwise in breach
or violation of any agreement for monies owed or owing in an amount in excess of $50,000, which breach or violation permits the other
party thereto to declare a default or otherwise accelerate amounts due thereunder, or (ii) suffer to exist any other circumstance or event
that would, with or without the passage of time or the giving of notice, result in a default or event of default under any agreement binding
the Company or any Subsidiary, which default or event of default would or is likely to have a material adverse effect on the business,
assets, operations (including results thereof), liabilities, properties, condition (including financial condition) or prospects of the
Company or any of its Subsidiaries, individually or in the aggregate, in which case only if such failure remains uncured for a period
of at least three (3) Trading Days;;


 






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(xiv) other
than as specifically set forth in another clause of this Section 4(a), the Company or any Subsidiary breaches any representation or warranty,
in any material respect (other than representations or warranties subject to material adverse effect or materiality, which may not be
breached in any respect) or any covenant or other term or condition of any Transaction Document, except, in the case of a breach of a
covenant or other term or condition that is curable, only if such breach remains uncured for a period of seven (7) consecutive calendar
days;


 


(xv) knowingly
making a false or inaccurate certification by the Company that either (A) the Equity Conditions are satisfied, (B) there has been no Equity
Conditions Failure, or (C) as to whether any Event of Default has occurred;


 


(xvi) any
breach or failure in any respect by the Company or any Subsidiary to comply with any provision of clauses (a)-(h), (m), (n), (q) or (r)
Section 14 of this Note;


 


(xvii) The
occurrence of (x) at any time after the six month anniversary of the Issuance Date, any Current Public Information Failure that remains
outstanding for a period of twenty (20) Trading Days or (y) any restatement of any financial statements of the Company filed with the
SEC;


 


(xviii) any
Material Adverse Effect (as defined in the Securities Purchase Agreement) occurs;


 


(xix) any
provision of any Transaction Document (including, without limitation, the Security Documents and the Guaranties) shall at any time for
any reason (other than pursuant to the express terms thereof or due to any failure or omission of the Collateral Agent) cease to be valid
and binding on or enforceable against the parties thereto, or the validity or enforceability thereof shall be contested by any party thereto
(other than any Holder or the Collateral Agent), or a proceeding shall be commenced by the Company or any Subsidiary or any governmental
authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, and in the case of a
proceeding brought by any governmental authority, such proceeding is not dismissed or ended without effect within forty-five (45) days
of being brought, or the Company or any Subsidiary shall deny in writing that it has any liability or obligation purported to be created
under any Transaction Document (including, without limitation, the Security Documents and the Guaranties);


 


(xx) any
Security Document shall for any reason (other than pursuant to the express terms thereof or due to any failure or omission of the Collateral
Agent) fail or cease to create a separate valid and perfected and, except to the extent permitted by the terms hereof or thereof, first
priority Lien (as defined in the Securities Purchase Agreement) on the Collateral (as defined in the Security Documents) in favor of the
Collateral Agent (as defined in the Securities Purchase Agreement) or any material provision of any Security Document shall at any time
for any reason (other than pursuant to the express terms thereof or due to any failure or omission of the Collateral Agent) cease to be
valid and binding on or enforceable against the Company or the validity or enforceability thereof shall be contested by any party thereto
(other than any Holder or the Collateral Agent), or a proceeding shall be commenced by the Company or any governmental authority having
jurisdiction over the Company, seeking to establish the invalidity or unenforceability thereof, and in the case of a proceeding brought
by any governmental authority, such proceeding is not dismissed or ended without effect within forty-five (45) days of being brought;


 






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(xxi) any
material damage to, or loss, theft or destruction of, any Collateral, that is material to the business of the Company or any Subsidiary
and is not reimbursed by insurance (or, if then subject to reimbursement, solely to the extent the Company has timely submitted a claim
to its insurance company with respect thereto, such insurance company has not challenged the validity or amount of such claim in any material
respect and the Company has no reasonable basis to believe that such insurance company will not accept and pay such claim in all material
respects) or otherwise, or any strike, lockout, labor dispute, embargo, condemnation, act of God or public enemy, or other casualty which
causes, for more than fifteen (15) consecutive days, the cessation or substantial curtailment of revenue producing activities at any facility
of the Company or any Subsidiary, other than cessation ordered by a Governmental Authority (as defined in the Securities Purchase Agreement)
generally applicable to similarly situated businesses, if any such event or circumstance could reasonably be expected to have a Material
Adverse Effect; or


 


(xxii) any
Event of Default (as defined in the Other Notes) occurs with respect to any Other Notes.


 


(b) Notice
of an Event of Default; Redemption Right. Upon becoming aware of the occurrence of an Event of Default with respect to this Note or
any Other Note, the Company shall within one (1) Business Day deliver written notice thereof via electronic mail and overnight courier
(with next day delivery specified) (an “Event of Default Notice”) to the Holder in accordance with the terms hereof;
provided, that if no Bankruptcy Event of Default or Event of Default pursuant to Section 4(a)(vi) exists, and the Company desires to satisfy
all, or any part, of any Alternate Conversion with respect to the related Event of Default Redemption Right Period (as defined below)
in cash pursuant to Section 3(e), such Event of Default Notice shall specify the percentage of any applicable Alternate Conversion Amount
that shall be satisfied in cash in accordance therewith (each, an “Alternate Cash Percentage”); provided, that the
Company shall not elect an Alternate Cash Percentage hereunder that is different from any Alternate Cash Percentage (as defined in the
Other Notes) elected by the Company with respect to any Other Note. At any time after the earlier of the Holder’s receipt of an
Event of Default Notice or the Holder becoming aware of an Event of Default (such earlier date, the “Event of Default Right Commencement
Date”) and ending (such ending date, the “Event of Default Right Expiration Date”, and each such period,
an “Event of Default Redemption Right Period”) on the twentieth (20th) Trading Day after the later of (x) the date
such Event of Default is cured and (y) the Holder’s receipt of an Event of Default Notice that includes (I) a reasonable description
of the applicable Event of Default, (II) a certification as to whether, in the opinion of the Company, such Event of Default is capable
of being cured and, if applicable, a reasonable description of any existing plans of the Company to cure such Event of Default and (III)
a certification as to the date the Event of Default occurred and, if cured on or prior to the date of such Event of Default Notice, the
applicable Event of Default Right Expiration Date (or such earlier date as elected by the Required Holders), the Holder may, but only
with the prior written consent of the Required Holders (it being understood that such consent may not be granted disproportionally to
the Holder and any other holder of Other Notes and such consent shall not be required if the Equal Treatment Condition has been breached
(and not subsequently cured) as of such time of determination), require the Company to redeem (regardless of whether such Event of Default
has been cured on or prior to the Event of Default Right Expiration Date) all or any portion of this Note by delivering written notice
thereof (the “Event of Default Redemption Notice”) to the Company, which Event of Default Redemption Notice shall indicate
the portion of this Note the Holder is electing to redeem. Each portion of this Note subject to redemption by the Company pursuant to
this Section 4(b) shall be redeemed by the Company at a price equal to the greater of (i) the product of (A) the Conversion Amount to
be redeemed multiplied by (B) the Redemption Premium and (ii) the product of (X) the Conversion Rate with respect to the Conversion Amount
in effect at such time as the Holder delivers an Event of Default Redemption Notice multiplied by (Y) the product of (1) the Redemption
Premium multiplied by (2) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date
immediately preceding such Event of Default and ending on the date the Company makes the entire payment required to be made under this
Section 4(b) (the “Event of Default Redemption Price”). Redemptions required by this Section 4(b) shall be made in
accordance with the provisions of Section 12. To the extent redemptions required by this Section 4(b) are deemed or determined by a court
of competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall be deemed to be voluntary prepayments.
Notwithstanding anything to the contrary in this Section 4(b), but subject to Section 3(d), until the Event of Default Redemption
Price (together with any Late Charges thereon) is paid in full, the Conversion Amount submitted for redemption under this Section 4(b)
(together with any Late Charges thereon) may be converted, in whole or in part, by the Holder into Common Stock pursuant to the terms
of this Note. In the event of a partial redemption of this Note pursuant hereto, the Principal amount redeemed shall be deducted from
the Installment Amount(s) relating to the applicable Installment Date(s) as set forth in the Event of Default Redemption Notice. In the
event of the Company’s redemption of any portion of this Note under this Section 4(b), the Holder’s damages would be uncertain
and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability
of a suitable substitute investment opportunity for the Holder. Accordingly, any Redemption Premium due under this Section 4(b) is intended
by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment opportunity and not
as a penalty. Any redemption upon an Event of Default shall not constitute an election of remedies by the Holder, and all other rights
and remedies of the Holder shall be preserved.


 






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(c) Mandatory
Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, and notwithstanding any conversion that
is then required or in process, upon any Bankruptcy Event of Default, whether occurring prior to or following the Maturity Date, the Company
shall immediately pay to the Holder an amount in cash representing (i) all outstanding Principal, accrued and unpaid Interest and accrued
and unpaid Late Charges on such Principal and Interest, multiplied by (ii) the Redemption Premium, in addition to any and all other amounts
due hereunder, without the requirement for any notice or demand or other action by the Holder or any other person or entity, provided
that the Holder may, in its sole discretion, waive such right to receive payment upon a Bankruptcy Event of Default, in whole or in part,
and any such waiver shall not affect any other rights of the Holder hereunder, including any other rights in respect of such Bankruptcy
Event of Default, any right to conversion, and any right to payment of the Event of Default Redemption Price or any other Redemption Price,
as applicable.


 


5. RIGHTS
UPON FUNDAMENTAL TRANSACTION.


 


(a) Assumption.
The Company shall not enter into or be party to a Fundamental Transaction unless the Successor Entity assumes in writing all of the obligations
of the Company under this Note and the other Transaction Documents in accordance with the provisions of this Section 5(a) pursuant to
written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder prior to such Fundamental Transaction,
including agreements to deliver to each holder of Notes in exchange for such Notes a security of the Successor Entity evidenced by a written
instrument substantially similar in form and substance to the Notes, including, without limitation, having a principal amount and interest
rate equal to the principal amounts then outstanding and the interest rates of the Notes held by such holder, having similar conversion
rights as the Notes and having similar ranking and security to the Notes, and reasonably satisfactory to the Holder. Upon the occurrence
of any Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such
Fundamental Transaction, the provisions of this Note and the other Transaction Documents referring to the “Company” shall
refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Note and the other Transaction Documents with the same effect as if such Successor Entity had been named as
the Company herein. Upon consummation of a Fundamental Transaction, the Successor Entity shall deliver to the Holder confirmation that
there shall be issued upon conversion or redemption of this Note at any time after the consummation of such Fundamental Transaction, in
lieu of the shares of Common Stock (or other securities, cash, assets or other property (except such items still issuable under Sections
6 and 16, which shall continue to be receivable thereafter)) issuable upon the conversion or redemption of the Notes prior to such Fundamental
Transaction, such shares of the publicly traded common stock (or their equivalent) of the Successor Entity (including its Parent Entity)
which the Holder would have been entitled to receive upon the happening of such Fundamental Transaction had this Note been converted immediately
prior to such Fundamental Transaction (without regard to any limitations on the conversion of this Note), as adjusted in accordance with
the provisions of this Note. Notwithstanding the foregoing, the Holder may elect, at its sole option, by delivery of written notice to
the Company to waive this Section 5(a) to permit the Fundamental Transaction without the assumption of this Note. The provisions of this
Section 5 shall apply similarly and equally to successive Fundamental Transactions and shall be applied without regard to any limitations
on the conversion of this Note.


 






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(b) Notice
of a Change of Control; Redemption Right. No sooner than twenty-one (21) Trading Days nor later than ten (10) Trading Days prior to
the consummation of a Change of Control (the “Change of Control Date”), but not prior to the public announcement of
such Change of Control, the Company shall deliver written notice of such Change of Control (or anticipated Change of Control, as applicable)
and the Holder’s rights hereunder with respect thereto via electronic mail and overnight courier to the Holder (a “Change
of Control Notice”, and such date thereof, each, a “Change of Control Notice Date”). At any time during the
period beginning after the Holder’s receipt of a Change of Control Notice or the Holder becoming aware of a Change of Control if
a Change of Control Notice is not delivered to the Holder in accordance with the immediately preceding sentence (as applicable) and ending
on the later of (A) one (1) Trading Day prior to the date of consummation of such Change of Control or (B) twenty (20) Trading Days after
the date of receipt of such Change of Control Notice (C) twenty (20) Trading Days after the date of the announcement of such Change of
Control if a Change of Control Notice was not delivered to the Holder prior to such announcement or (D) twenty (20) Trading Days after
the date on which the Holder became aware of a Change of Control if a Change of Control Notice was not delivered to the Holder (such later
date, the “Change of Control Redemption Right End Date”), the Holder may require the Company to redeem all or any portion
of this Note by delivering written notice thereof (“Change of Control Redemption Notice”, and any such redemption,
a “Change of Control Redemption”) to the Company, which Change of Control Redemption Notice shall indicate the Conversion
Amount the Holder is electing to redeem and the remaining Conversion Amount the Holder is electing to convert and take in Reference Property.
The portion of this Note subject to redemption pursuant to this Section 5 shall be redeemed by the Company in cash at a price equal to
the greatest of (i) the product of (x) the Change of Control Redemption Premium multiplied by (y) the Conversion Amount being redeemed,
(ii) the product of (x) the Change of Control Redemption Premium multiplied by (y) the product of (A) the Conversion Amount being redeemed
multiplied by (B) the quotient determined by dividing (I) the greatest Closing Sale Price of the shares of Common Stock during the period
beginning on the date immediately preceding the earlier to occur of (1) the consummation of the applicable Change of Control and (2) the
public announcement of such Change of Control and ending on the date the Holder delivers the Change of Control Redemption Notice by (II)
the Conversion Price then in effect and (iii) the product of (x) the Change of Control Redemption Premium multiplied by (y) the product
of (A) the Conversion Amount being redeemed multiplied by (B) the quotient of (I) the aggregate cash consideration and the aggregate cash
value of any non-cash consideration per share of Common Stock to be paid to the holders of the shares of Common Stock upon consummation
of such Change of Control (any such non-cash consideration constituting publicly-traded securities shall be valued at the highest of the
Closing Sale Price of such securities as of the Trading Day immediately prior to the consummation of such Change of Control, the Closing
Sale Price of such securities on the Trading Day immediately following the public announcement of such proposed Change of Control and
the Closing Sale Price of such securities on the Trading Day immediately prior to the public announcement of such proposed Change of Control)
divided by (II) the Conversion Price then in effect (the “Change of Control Redemption Price”). Redemptions required
by this Section 5 shall be made in accordance with the provisions of Section 12 and shall have priority to payments to stockholders in
connection with such Change of Control. To the extent redemptions required by this Section 5(b) are deemed or determined by a court of
competent jurisdiction to be prepayments of this Note by the Company, such redemptions shall be deemed to be voluntary prepayments. Notwithstanding
anything to the contrary in this Section 5, but subject to Section 3(d), until the Change of Control Redemption Price (together with
any Late Charges thereon) is paid in full, the Conversion Amount submitted for redemption under this Section 5(b) (together with any Late
Charges thereon) may be converted, in whole or in part, by the Holder into (i) Common Stock pursuant to Section 3 if such conversion is
prior to the Change of Control Date or (ii) Reference Property pursuant to this Section 5(b) if such conversion is on or after the Change
of Control Date. In the event of a partial redemption of this Note pursuant hereto, the Principal amount redeemed shall be deducted from
the Installment Amount(s) relating to the applicable Installment Date(s) as set forth in the Change of Control Redemption Notice. In the
event of the Company’s redemption of any portion of this Note under this Section 5(b), the Holder’s damages would be uncertain
and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty of the availability
of a suitable substitute investment opportunity for the Holder. Accordingly, any Change of Control Redemption Premium due under this Section
5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss of its investment
opportunity and not as a penalty.


 






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(c) Company
Change of Control Redemption Right. Notwithstanding anything in Section 5(a) or Section 5(b) to the contrary, as long as no Event
of Default has occurred and is continuing, in connection with a Change of Control, the Company shall have the right, at any time during
the period commencing on the applicable Change of Control Notice Date through, and including, the fifth (5th) Trading Day immediately
prior to the applicable Change of Control Redemption Right End Date, by delivery of a written notice (the “Forced Change of Control
Redemption Notice”) to the Holder, to require the Holder to elect to effect a Change of Control Redemption in connection therewith
(or, at the option of the Holder, to receive Reference Property (as defined below), in whole or in part, with respect thereto). If the
Company properly delivers a Forced Change of Control Redemption Notice in accordance with this Section 5(c), the Holder shall receive
upon consummation of the Change of Control, at such Holder’s election, to be made by delivery of a notice to the Company stating
such election (the “Forced Change of Control Election Notice”) to be delivered to the Company within the time periods
of Section 5(b) for delivery of Change of Control Redemption Notice, (i) cash in an amount equal to the Change of Control Redemption Price
in a Change of Control Redemption (with a Change of Control Redemption Notice being deemed to have been delivered to the Company as of
the date of delivery of such Forced Change of Control Election Notice) or (ii) the kind and amount of cash, securities or other property
receivable upon such Change of Control had the Conversion Amount been converted at the Conversion Price in accordance with Section 3(c)
immediately prior to such Change of Control (without regard to any limitations on the conversion of this Note) (the “Reference
Property”), after which this Note shall be deemed repaid in full and cancelled.


 


6. RIGHTS
UPON ISSUANCE OF PURCHASE RIGHTS AND OTHER CORPORATE EVENTS.


 


(a) Purchase
Rights. In addition to any adjustments pursuant to Section 7 and Section 16 below and not in duplication thereof, if at any time the
Company grants, issues or sells any Options, Convertible Securities or rights to purchase stock, warrants, securities or other property
pro rata to all or substantially all of the record holders of Common Stock (the “Purchase Rights”), then the Holder
will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have
acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of this Note (without taking
into account any limitations or restrictions on the convertibility of this Note and assuming for such purpose that the Note was converted
at the Alternate Conversion Price as of the applicable record date) immediately prior to the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that to the extent that
the Holder’s right to participate in any such Purchase Right would result in the Holder and the other Attribution Parties exceeding
the Maximum Percentage, then the Holder shall not be entitled to participate in such Purchase Right to the extent of the Maximum Percentage
(and shall not be entitled to beneficial ownership of such shares of Common Stock as a result of such Purchase Right (and beneficial ownership)
to the extent of any such excess) and such Purchase Right to such extent shall be held in abeyance (and, if such Purchase Right has an
expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance, if applicable)
for the benefit of the Holder until such time or times, if ever, as its right thereto would not result in the Holder and the other Attribution
Parties exceeding the Maximum Percentage, at which time or times the Holder shall be granted such right (and any Purchase Right granted,
issued or sold on such initial Purchase Right or on any subsequent Purchase Right held similarly in abeyance (and, if such Purchase Right
has an expiration date, maturity date or other similar provision, such term shall be extended by such number of days held in abeyance,
if applicable)) to the same extent as if there had been no such limitation).


 


(b) Other
Corporate Events. In addition to and not in substitution for any other rights hereunder, prior to the consummation of any Fundamental
Transaction, other than a Change of Control, pursuant to which holders of shares of Common Stock are entitled to receive securities or
other assets with respect to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make
appropriate provision to ensure that the Holder will thereafter have the right to receive upon a conversion of this Note, at the Holder’s
option (i) in addition to the shares of Common Stock receivable upon such conversion, such securities or other assets to which the Holder
would have been entitled with respect to such shares of Common Stock had such shares of Common Stock been held by the Holder upon the
consummation of such Corporate Event (without taking into account any limitations or restrictions on the convertibility of this Note)
or (ii) in lieu of the shares of Common Stock otherwise receivable upon such conversion, such securities or other assets received by the
holders of shares of Common Stock in connection with the consummation of such Corporate Event in such amounts as the Holder would have
been entitled to receive had this Note initially been issued with conversion rights for the form of such consideration (as opposed to
shares of Common Stock) at a conversion rate for such consideration commensurate with the quotient of (x) the Conversion Amount divided
by (y) the Conversion Price. Provision made pursuant to the preceding sentence shall be in a form and substance satisfactory to the Holder.
The provisions of this Section 6 shall apply similarly and equally to successive Corporate Events and shall be applied without regard
to any limitations on the conversion or redemption of this Note.


 






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7. ADJUSTMENTS
TO CONVERSION PRICE.


 


(a) Adjustment
of Conversion Price upon Issuance of Common Stock. If and whenever on or after the Subscription Date the Company grants, issues or
sells (or enters into any agreement to grant, issue or sell), or in accordance with this Section 7(a) is deemed to have granted, issued
or sold, any shares of Common Stock (including the issuance or sale of shares of Common Stock owned or held by or for the account of the
Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration
per share (the “New Issuance Price”) less than a price equal to the Conversion Price in effect immediately prior to
such granting, issuance or sale or deemed granting, issuance or sale (such Conversion Price then in effect is referred to herein as the
“Applicable Price”) (the foregoing a “Dilutive Issuance”), then, immediately after such Dilutive
Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing
(including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section 7(a)), the following
shall be applicable.


 


(i) Issuance
of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options
and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon
conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the
terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued
and sold by the Company at the time of the granting, issuance or sale of such Option for such price per share. For purposes of this Section
7(a)(i), the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option
or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant
to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or
receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale of such Option, upon exercise
of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise
pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable
(or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or
exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof, minus (2)
the sum of all amounts paid or payable to the holder of such Option (or any other Person) with respect to any one share of Common Stock
upon the granting, issuance or sale of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible
Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration (including,
without limitation, consideration consisting of cash, debt forgiveness, assets or any other property) received or receivable by, or benefit
conferred on, the holder of such Option (or any other Person). Except as contemplated below, no further adjustment of the Conversion Price
shall be made upon the actual issuance of such share of Common Stock or of such Convertible Securities upon the exercise of such Options
or otherwise pursuant to the terms thereof or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange
of such Convertible Securities.


 


(ii) Issuance
of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible
Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or
exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be
deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution
of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section
7(a)(ii), the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise
or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts
of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or
pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such
Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security
for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise
or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts paid or payable to the holder of such
Convertible Security (or any other Person) with respect to any one share of Common Stock upon the issuance or sale (or the agreement to
issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable (including,
without limitation, any consideration consisting of cash, debt forgiveness, assets or other property) by, or benefit conferred on, the
holder of such Convertible Security (or any other Person). Except as contemplated below, no further adjustment of the Conversion Price
shall be made upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities
or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any
Options for which adjustment of the Conversion Price has been or is to be made pursuant to other provisions of this 7(a)(ii), except as
contemplated below, no further adjustment of the Conversion Price shall be made by reason of such issuance or sale.


 






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(iii) Change
in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration,
if any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities
are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than proportional
changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 7(b) below), the Conversion
Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at
such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration
or increased or decreased conversion rate (as the case may be) at the time initially granted, issued or sold. For purposes of this Section
7(a)(iii), if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that
was outstanding as of the Subscription Date) are increased or decreased in the manner described in the immediately preceding sentence,
then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof
shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section 7(a)(iii) shall
be made if such adjustment would result in an increase of the Conversion Price then in effect.


 


(iv) Calculation
of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance
or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”,
and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities”), together comprising
one integrated transaction (or one or more transactions if such issuances or sales or deemed issuances or sales of securities of the Company
either (A) have at least one investor or purchaser in common, (B) are consummated in reasonable proximity to each other and/or (C) are
consummated under the same plan of financing), the aggregate consideration per share of Common Stock with respect to such Primary Security
shall be deemed to be equal to the difference of (x) the lowest price per share for which one share of Common Stock was issued (or was
deemed to be issued pursuant to Section 7(a)(i) or 7(a)(ii) above, as applicable) in such integrated transaction solely with respect to
such Primary Security, minus (y) with respect to such Secondary Securities, the sum of (I) the Black Scholes Consideration Value of each
such Option, if any, (II) the fair market value (as determined by the Holder in good faith) or the Black Scholes Consideration Value,
as applicable, of such Adjustment Right, if any, and (III) the fair market value (as determined by the Holder) of such Convertible Security,
if any, in each case, as determined on a per share basis in accordance with this Section 7(a)(iv). If any shares of Common Stock, Options
or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor (for
the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the
calculation of the Black Scholes Consideration Value) will be deemed to be the net amount of consideration received by the Company therefor.
If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of
such consideration received by the Company (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible
Security, but not for the purpose of the calculation of the Black Scholes Consideration Value) will be the fair value of such consideration,
except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company
for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding
the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity
in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor (for the purpose of determining
the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black
Scholes Consideration Value) will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity
as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration
other than cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to
reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”),
the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such
Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser
shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.








 






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


 


(b) Adjustment
of Conversion Price upon Subdivision or Combination of Common Stock. Without limiting any provision of Section 6, Section 16
or Section 7(a), if the Company at any time on or after the Subscription Date subdivides (by any stock split, stock dividend, stock
combination, recapitalization or other similar transaction) one or more classes of its outstanding shares of Common Stock into a greater
number of shares, the Conversion Price in effect immediately prior to such subdivision will be proportionately reduced. Without limiting
any provision of Section 6, Section 16 or Section 7(a), if the Company at any time on or after the Subscription Date combines
(by any stock split, stock dividend, stock combination, recapitalization or other similar transaction) one or more classes of its outstanding
shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination will be proportionately
increased. Any adjustment pursuant to this Section 7(b) shall become effective immediately after the effective date of such subdivision
or combination. If any event requiring an adjustment under this Section 7(b) occurs during the period that a Conversion Price is calculated
hereunder, then the calculation of such Conversion Price shall be adjusted appropriately to reflect such event.


 


(c) Holder’s
Right of Adjusted Conversion Price. In addition to and not in limitation of the other provisions of this Section 7, if the Company
in any manner issues or sells or enters into any agreement to issue or sell, any Common Stock, Options or Convertible Securities (any
such securities, “Variable Price Securities”), after the Subscription Date that are issuable pursuant to such agreement
or convertible into or exchangeable or exercisable for shares of Common Stock at a price which varies or may vary with the market price
of the shares of Common Stock, including by way of one or more reset(s) to a fixed price, but exclusive of such formulations reflecting
customary anti-dilution provisions (such as share splits, share combinations, share dividends and similar transactions) (each of the formulations
for such variable price being herein referred to as, the “Variable Price”), other than Excluded Securities, the Company
shall provide written notice thereof via electronic mail and overnight courier to the Holder on the date of such agreement and the issuance
of such Common Stock, Convertible Securities or Options. From and after the date the Company enters into such agreement or issues any
such Variable Price Securities, the Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable
Price for the Conversion Price upon conversion of this Note by designating in the Conversion Notice delivered upon any conversion of this
Note that solely for purposes of such conversion the Holder is relying on the Variable Price rather than the Conversion Price then in
effect. The Holder’s election to rely on a Variable Price for a particular conversion of this Note shall not obligate the Holder
to rely on a Variable Price for any future conversion of this Note. In addition, from and after the date the Company enters into such
agreement or issues any such Variable Price Securities, for purposes of calculating the Installment Conversion Price as of any time of
determination, the “Conversion Price” as used therein shall mean the lower of (x) the Conversion Price as of such time of
determination and (y) the Variable Price as of such time of determination.


 


(d) Other
Events. In the event that the Company (or any Subsidiary) shall take any action to which the provisions hereof are not strictly applicable,
or, if applicable, would not operate to protect the Holder from dilution or if any event occurs of the type contemplated by the provisions
of this Section 7 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation
rights, phantom stock rights or other rights with equity features), then the Company’s board of directors shall in good faith determine
and implement an appropriate adjustment in the Conversion Price so as to protect the rights of the Holder, provided that no such adjustment
pursuant to this Section 7 will increase the Conversion Price as otherwise determined pursuant to this Section 7, provided further that
if the Holder does not accept such adjustments as appropriately protecting its interests hereunder against such dilution, then the Company’s
board of directors and the Holder shall agree, in good faith, upon an independent investment bank of nationally recognized standing to
make such appropriate adjustments, whose determination shall be final and binding absent manifest error and whose fees and expenses shall
be borne by the Company.


 






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(e) Calculations.
All calculations under this Section 7 shall be made by rounding to the nearest cent or the nearest 1/100th of a share, as applicable.
The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the
Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.


 


(f) Voluntary
Adjustment by Company. Subject to the rules and regulations of the Principal Market, the Company may at any time during the term of
this Note, with the prior written consent of the Required Holders (as defined in the Securities Purchase Agreement), reduce the then current
Conversion Price of each of the Notes to any amount and for any period of time deemed appropriate by the board of directors of the Company.


 


8. INSTALLMENT
CONVERSION OR REDEMPTION.


 


(a) General.
On each applicable Installment Date, provided there has been no Equity Conditions Failure, the Company shall pay to the Holder of
this Note the applicable Installment Amount due on such date by converting such Installment Amount in accordance with this Section 8
(a “Installment Conversion”); provided, however, that the Company may, at its option following
notice to the Holder as set forth below, pay the Installment Amount by redeeming such Installment Amount in cash (a
“Installment Redemption”) or by any combination of an Installment Conversion and an Installment Redemption so
long as all of the outstanding applicable Installment Amount due on any Installment Date shall be converted and/or redeemed by the
Company on the applicable Installment Date, subject to the provisions of this Section 8; and provided, further that, if an
Equity Conditions Failure exists, the Company shall pay the entire Installment Amount as an Installment Redemption (unless such
Equity Conditions Failure is waived by the Holder). On the date which is at least ten (10) Trading Days, but no more than twenty
(20) Trading Days prior to each Installment Date, the Company shall deliver written notice (each, a “Installment
Notice” and the date all of the holders receive such notice is referred to as to the “Installment Notice
Date”), to each holder of Notes and such Installment Notice shall (i) either (A) confirm that the applicable Installment
Amount of such holder’s Note shall be converted in whole pursuant to an Installment Conversion or (B) (1) state that the
Company elects to redeem for cash, or is required to redeem for cash in accordance with the provisions of the Notes, in whole or in
part, the applicable Installment Amount pursuant to an Installment Redemption and (2) specify the portion of such Installment Amount
which the Company elects or is required to redeem for cash pursuant to an Installment Redemption (such amount to be redeemed in
cash, the “Installment Redemption Amount”) and the portion of the applicable Installment Amount, if any, with
respect to which the Company will, and is permitted to, effect an Installment Conversion (such amount of the applicable Installment
Amount so specified to be so converted pursuant to this Section 8 is referred to herein as the “Installment Conversion
Amount”), which amounts when added together, must at least equal the entire applicable Installment Amount and (ii) if the
applicable Installment Amount is to be paid, in whole or in part, pursuant to an Installment Conversion, certify that there is not
then an Equity Conditions Failure as of the applicable Installment Notice Date; provided, however, that to the extent
that payment of the Installment Amount, in whole or in part, pursuant to an Installment Conversion would result in a breach of
Section 3(d), then the Company shall be required to redeem for cash the applicable Installment Amount pursuant to an Installment
Redemption to the extent of such excess portion of such Installment Amount that, if converted in an Installment Conversion, would
otherwise result in a breach of Section 3(d) (including, without limitation, during the applicable Interim Installment Period (as
defined below)). Each Installment Notice shall be irrevocable. Failure to deliver or timely deliver an Installment Notice shall not
constitute an Event of Default with respect to a particular Installment Date, however, upon any such failure the Company shall be
deemed to have delivered an irrevocable Installment Notice confirming an Installment Conversion of the entire Installment Amount
payable on such Installment Date and shall be deemed to have certified that there is not then an Equity Conditions Failure in
connection with such Installment Conversion. Except as expressly provided in this Section 8(a), the Company shall convert and/or
redeem the applicable Installment Amount of this Note pursuant to this Section 8 and the corresponding Installment Amounts of the
Other Notes pursuant to the corresponding provisions of the Other Notes in the same ratio of the applicable Installment Amount being
converted and/or redeemed hereunder (other than adjustments required to comply with Section 3(d)). The applicable Installment
Conversion Amount (whether set forth in the applicable Installment Notice or by operation of this Section 8) shall be converted in
accordance with Section 8(b) and the applicable Installment Redemption Amount shall be redeemed in accordance with Section 8(c).
Notwithstanding anything in this Section 8 to the contrary, if the Company has sold any shares of Common Stock in an at-the-market
offering during the twelve calendar months immediately prior to any given Installment Date (or, if less, the period commencing on
the Issuance Date through the Trading Day immediately prior to such given Installment Date), the Company shall not be permitted to
effect an Installment Redemption for such Installment Date hereunder unless (I) no Price ATM Failure then exists or (II) in lieu of
the payment of 100% of the applicable Installment Redemption Amount as the Installment Redemption Price pursuant to the first
sentence of Section 8(c) below, the Company shall instead pay (or, if an Equity Conditions Failure then exists and is not waived by
the Holder, shall be required to pay) 110% of the applicable Installment Amount as the Installment Redemption Price for such
Installment Redemption (each, an “Alternate Installment Redemption Price”).


 






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(b) Mechanics
of Installment Conversion. Subject to Section 3(d), if the Company delivers an Installment Notice or is deemed to have delivered
an Installment Notice certifying that such Installment Amount is being paid, in whole or in part, in an Installment Conversion in accordance
with Section 8(a), then the remainder of this Section 8(b) shall apply. If the Equity Conditions are satisfied (or waived in writing by
the Holder) on the applicable Installment Date and an Installment Conversion is not otherwise prohibited under any other provision of
this Note, the applicable Installment Conversion Amount, if any, shall be converted on such Installment Date at the applicable Installment
Conversion Price and the Company shall, on such Installment Date, (A) (1) provided that the Transfer Agent is participating in FAST and
the 144 Rep Condition has been satisfied credit such aggregate number of shares of Common Stock to which the Holder shall be entitled
pursuant to such Installment Conversion to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system or (2) if the Transfer Agent is not participating in FAST or the 144 Rep Conditions has not been satisfied, upon the
request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Installment Notice, a certificate,
registered in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder shall be entitled pursuant
to such Installment Conversion (delivery being deemed to occur upon delivery of such certificate to such reputable overnight courier)
(subject to the reduction contemplated by the immediately following sentence and, if applicable, the penultimate sentence of this Section
8(b)) and (B) in the event of the Conversion Floor Price Condition, the Company shall deliver to the Holder the applicable Installment
Conversion Floor Amount. If the Company confirmed (or is deemed to have confirmed by operation of Section 8(a)) the conversion of the
applicable Installment Conversion Amount, in whole or in part, and there was no Equity Conditions Failure as of the applicable Installment
Notice Date (or is deemed to have certified that the Equity Conditions in connection with any such conversion have been satisfied by operation
of Section 8(a)) but an Equity Conditions Failure then existed or occurred between the applicable Installment Notice Date and any time
to and including the applicable Installment Date (the “Interim Installment Period”), the Company shall provide the
Holder a subsequent notice to that effect. If there is an Equity Conditions Failure (which is not waived in writing by the Holder) during
such Interim Installment Period or an Installment Conversion is not otherwise permitted under any other provision of this Note (other
than pursuant to Section 3(d)(i)), then, at the option of the Holder designated in writing to the Company on or prior to the Installment
Date, the Holder may require the Company to do any one or more of the following: (i) the Company shall redeem all or any part designated
by the Holder of the unconverted Installment Conversion Amount (such designated amount is referred to as the “Designated Redemption
Amount”) and the Company shall pay to the Holder within two (2) Business Days of such Installment Date, by wire transfer of
immediately available funds, an amount in cash equal to the Redemption Premium of such Designated Redemption Amount, and/or (ii) the Installment
Conversion shall be null and void with respect to all or any part designated by the Holder of the unconverted Installment Conversion Amount
and the Holder shall be entitled to all the rights of a holder of this Note with respect to such designated part of the Installment Conversion
Amount; provided, however, the Conversion Price for such voided unconverted Installment Conversion Amount shall thereafter be adjusted
to equal the lesser of (A) the Installment Conversion Price as in effect on the date on which the Holder voided the Installment Conversion
and (B) the Installment Conversion Price that would be in effect on the date on which the Holder delivers a Conversion Notice relating
thereto as if such date was an Installment Date. If the Company fails to pay any Designated Redemption Amount by the third (3rd)
Business Day following the applicable Installment Date by payment of such amount by such date, then the Holder shall have the rights set
forth in Section 12(a) as if the Company failed to pay the applicable Installment Redemption Price (as defined below) and all other rights
under this Note (including, without limitation, such failure constituting an Event of Default described in Section 4(a)(vi)). Notwithstanding
anything to the contrary in this Section 8(b), but subject to 3(d), until the Company delivers Common Stock representing the Installment
Conversion Amount to the Holder, the Installment Conversion Amount may be converted by the Holder into Common Stock pursuant to Section
3. In the event that the Holder elects to convert the Installment Conversion Amount prior to the applicable Installment Date as set forth
in the immediately preceding sentence, the Installment Conversion Amount so converted shall be deducted from the Installment Amount(s)
relating to the applicable Installment Date(s) as set forth in the applicable Conversion Notice. The Company shall pay any and all transfer,
stamp, issuance and similar taxes that may be payable with respect to the issuance and delivery of any shares of Common Stock in any Installment
Conversion hereunder.


 






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(c) Mechanics
of Installment Redemption. If the Company elects or is required to effect an Installment Redemption, in whole or in part, in accordance
with Section 8(a), then the Installment Redemption Amount, if any, shall be redeemed by the Company in cash on the applicable Installment
Date by wire transfer to the Holder of immediately available funds in an amount equal to 100% of the applicable Installment Redemption
Amount (or, if applicable, the Alternate Installment Redemption Price with respect thereto) (the “Installment Redemption Price”).
If the Company fails to redeem such Installment Redemption Amount on such Installment Date by payment of the Installment Redemption Price,
then, at the option of the Holder designated in writing to the Company (any such designation shall be a “Conversion Notice”
for purposes of this Note), the Holder may require the Company to convert all or any part of the Installment Redemption Amount at the
Installment Conversion Price (determined as of the date of such designation as if such date were an Installment Date). Conversions required
by this Section 8(c) shall be made in accordance with the provisions of Section 3(c). Notwithstanding anything to the contrary in this
Section 8(c), but subject to Section 3(d), until the Installment Redemption Price (together with any Late Charges thereon) is paid
in full, the Installment Redemption Amount (together with any Late Charges thereon) may be converted, in whole or in part, by the Holder
into Common Stock pursuant to Section 3. In the event the Holder elects to convert all or any portion of the Installment Redemption Amount
prior to the applicable Installment Date as set forth in the immediately preceding sentence, the Installment Redemption Amount so converted
shall be deducted from the Installment Amounts relating to the applicable Installment Date(s) as set forth in the applicable Conversion
Notice. Redemptions required by this Section 8(c) shall be made in accordance with the provisions of Section 12.


 


(d) Deferred
Installment Amount. Notwithstanding any provision of this Section 8 to the contrary, with respect to any given Installment Date, the
Holder may, at its option and in its sole discretion, deliver a written notice to the Company no later than 4:00 p.m. New York time on
the Trading Day immediately prior to such Installment Date electing to have the payment of all or any portion of an Installment Amount
payable on such Installment Date deferred (such amount deferred, the “Deferral Amount”, and such deferral, each, a
“Deferral”) until the immediately subsequent Installment Date, in which case, the Deferral Amount shall be added to,
and become part of, such subsequent Installment Amount and such Deferral Amount shall continue to accrue Interest hereunder. Any notice
delivered by the Holder pursuant to this Section 8(d) shall set forth (i) the Deferral Amount and (ii) the date that such Deferral Amount
shall now be payable.


 


(e) Acceleration
of Installment Amounts. Notwithstanding anything herein to the contrary, during the period commencing on an Installment Date (a “Current
Installment Date”) and ending on, and including, the Trading Day immediately prior to the next Installment Date (each, an “Installment
Period”), at the option of the Holder, at one or more times, the Holder may convert any portion of any Deferral Amount in which
the Company has previously elected to convert (or is deemed to have elected to convert, as applicable) in an Installment Conversion (each,
an “Acceleration”, and each such amount, an “Acceleration Amount”), in whole or in part, into shares
of Common Stock in accordance with the conversion procedures set forth in Section 3 hereunder (with the applicable Installment Acceleration
Price for such Conversion Date replacing “Conversion Price” and the applicable Acceleration Amount replacing “Conversion
Amount” for all purposes therein, mutatis mutandis (each such date, an “Acceleration Date”)); provided,
that if such Installment Acceleration Price is less than the greater of (x) the Floor Price and (y) 90% of the applicable Installment
Conversion Price for such Current Installment Date (each, an “Installment Acceleration Floor Price”, and each such
event, a “Floor Price Event”), the Acceleration Amount shall alternatively be paid by the Company to the Holder in
cash pursuant to an Installment Redemption hereunder in accordance with Section 8(c) above, mutatis mutandis, with such Deferral
Amount subject to such Acceleration deemed to be the “Installment Redemption Amount” thereunder with a deemed “Installment
Date” as of such Acceleration Date. Notwithstanding the foregoing, (i) if a Floor Price Event exists with respect to an Acceleration
hereunder either (A) the Holder may, at its option, by delivery of written notice to the Company, increase the Installment Acceleration
Price for such Acceleration Date to the Installment Acceleration Floor Price for all, or any part, of the Acceleration Amount of such
Acceleration, which portion of such Acceleration Amount shall be converted into shares of Common Stock in accordance with this Section
8(e) at such new Installment Acceleration Price (as so adjusted) and the Company shall pay the Holder the applicable Installment Acceleration
Floor Amount with respect thereto or (B) the Company and the Holder, by joint written consent, may waive the applicable Installment Acceleration
Floor Price (but not to an amount less than the Floor Price) for all, or any part, of the Acceleration Amount of such Acceleration, which
portion of such Acceleration Amount shall be converted into shares of Common Stock at the Installment Acceleration Price on such Conversion
Date in accordance with this Section 8(e) without regard to the Installment Acceleration Floor Price; provided, that, in each case, any
portion of such Acceleration Amount not converted pursuant to this clause (i) shall be satisfied in cash pursuant to an Installment Redemption
as provided above, and (ii) with respect to any given Installment Period, the Holder may not elect to effect any Acceleration (a “Current
Acceleration”) during such Installment Period if the sum of (A) the Acceleration Amounts with respect to Accelerations previously
consummated by the Holder during the applicable Installment Period and (B) the Acceleration Amount of such Current Acceleration, collectively,
exceeds the Installment Amount with respect to such Current Installment Date (after giving effect to any Deferrals to such Current Installment
Date, but excluding any Deferrals from such Current Installment Date to a future Installment Date), or such greater amount as the Company
may approve in writing from time to time.


 






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9. REDEMPTIONS
AT THE COMPANY’S ELECTION.


 


(a) Company
Optional Redemption. At any time no Equity Conditions Failure exists, the Company shall have the right to redeem all, but not less
than all, of the Conversion Amount then remaining under this Note (the “Company Optional Redemption Amount”) on the
Company Optional Redemption Date (each as defined below) (a “Company Optional Redemption”). The portion of this Note
subject to redemption pursuant to this Section 9 shall be redeemed by the Company in cash at a price (the “Company Optional Redemption
Price”) equal to the greater of (i) 121% of the Conversion Amount being redeemed as of the Company Optional Redemption Date
and (ii) 115% of the product of (1) the Conversion Rate with respect to the Conversion Amount being redeemed as of the Company Optional
Redemption Date multiplied by (2) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing
on the date immediately preceding such Company Optional Redemption Notice Date and ending on the Trading Day immediately prior to the
date the Company makes the entire payment required to be made under this Section 9. The Company may exercise its right to require redemption
under this Section 9 by delivering a written notice thereof by electronic mail and overnight courier to all, but not less than all, of
the holders of Notes (the “Company Optional Redemption Notice” and the date all of the holders of Notes have received
such notice is referred to as the “Company Optional Redemption Notice Date”). The Company may deliver only one Company
Optional Redemption Notice hereunder and such Company Optional Redemption Notice shall be irrevocable. The Company Optional Redemption
Notice shall (x) state the date on which the Company Optional Redemption shall occur (the “Company Optional Redemption Date”)
which date shall not be less than fifteen (15) calendar days nor more than thirty (30) calendar days following the Company Optional Redemption
Notice Date, (y) certify that there has been no Equity Conditions Failure and (z) state the aggregate Conversion Amount of the Notes which
is being redeemed in such Company Optional Redemption from the Holder and all of the other holders of the Notes pursuant to this Section
9 (and analogous provisions under the Other Notes) on the Company Optional Redemption Date. Notwithstanding anything herein to the contrary,
(i) if no Equity Conditions Failure has occurred as of the Company Optional Redemption Notice Date but an Equity Conditions Failure occurs
at any time prior to the Company Optional Redemption Date, (A) the Company shall provide the Holder a subsequent notice to that effect
and (B) unless the Holder waives the Equity Conditions Failure, the Company Optional Redemption shall be cancelled and the applicable
Company Optional Redemption Notice shall be null and void and (ii) at any time prior to the date the Company Optional Redemption Price
is paid, in full, the Company Optional Redemption Amount may be converted, in whole or in part, by the Holder into shares of Common Stock
pursuant to Section 3(c). All Conversion Amounts converted by the Holder after the Company Optional Redemption Notice Date shall reduce
the Company Optional Redemption Amount of this Note required to be redeemed on the Company Optional Redemption Date. Redemptions made
pursuant to this Section 9 shall be made in accordance with Section 12. In the event of the Company’s redemption of any portion
of this Note under this Section 9, the Holder’s damages would be uncertain and difficult to estimate because of the parties’
inability to predict future interest rates and the uncertainty of the availability of a suitable substitute investment opportunity for
the Holder. Accordingly, any redemption premium due under this Section 9 is intended by the parties to be, and shall be deemed, a reasonable
estimate of the Holder’s actual loss of its investment opportunity and not as a penalty. For the avoidance of doubt, the Company
shall have no right to effect a Company Optional Redemption if any Event of Default has occurred and is continuing, but any Event of Default
shall have no effect upon the Holder’s right to convert this Note in its discretion.


 






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(b) Pro
Rata Redemption Requirement. If the Company elects to cause a Company Optional Redemption of this Note pursuant to Section 9(a), then
it must simultaneously take the same action with respect to all of the Other Notes.


 


10. NONCIRCUMVENTION.
The Company hereby covenants and agrees that the Company will not, by amendment of its Certificate of Incorporation (as defined in the
Securities Purchase Agreement), Bylaws (as defined in the Securities Purchase Agreement) 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 of the provisions
of this Note and take all action as may be required to protect the rights of the Holder of this Note. Without limiting the generality
of the foregoing or any other provision of this Note or the other Transaction Documents, the Company (a) shall not increase the par
value of any shares of Common Stock receivable upon conversion of this Note above the Conversion Price then in effect, and (b) shall
take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable
shares of Common Stock upon the conversion of this Note. Notwithstanding anything herein to the contrary, if after sixty (60) calendar
days following the Issuance Date, the Holder is not permitted to convert this Note in full for any reason (other than pursuant to restrictions
set forth in Section 3(d) hereof), the Company shall use its best efforts to promptly remedy such failure, including, without limitation,
obtaining such consents or approvals as necessary to permit such conversion into shares of Common Stock.


 


11. RESERVATION
OF AUTHORIZED SHARES.


 


(a) Reservation.
So long as any Notes remain outstanding, the Company shall at all times reserve at least 200% of the number of shares of Common Stock
as shall from time to time be necessary to effect the conversion, including without limitation, Alternate Conversions, of all of the Notes
then outstanding (without regard to any limitations on conversions and assuming such Notes remain outstanding until the Maturity Date)
at the Alternate Conversion Price then in effect (the “Required Reserve Amount”). The Required Reserve Amount shall
be allocated pro rata among the holders of the Notes based on the original principal amount of the Notes held by each holder on the Closing
Date (the “Authorized Share Allocation”). In the event that a holder shall sell or otherwise transfer any of such holder’s
Notes, each transferee shall be allocated a pro rata portion of such holder’s Authorized Share Allocation. Any shares of Common
Stock reserved and allocated to any Person which ceases to hold any Notes shall be allocated to the remaining holders of Notes, pro rata
based on the principal amount of the Notes then held by such holders.


 


(b) Insufficient
Authorized Shares. If, notwithstanding Section 11(a), and not in limitation thereof, at any time while any of the Notes remain outstanding
the Company does not have a sufficient number of authorized and unreserved shares of Common Stock to satisfy its obligation to reserve
for issuance upon conversion of the Notes at least a number of shares of Common Stock equal to the Required Reserve Amount (an “Authorized
Share Failure”), then the Company shall immediately take all action necessary to increase the Company’s authorized shares
of Common Stock to an amount sufficient to allow the Company to reserve the Required Reserve Amount for the Notes then outstanding. Without
limiting the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure,
but in no event later than sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of
its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such meeting,
the Company shall provide each stockholder with a proxy statement and shall use its best efforts to solicit its stockholders’ approval
of such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders that they approve
such proposal. In the event that the Company is prohibited from issuing shares of Common Stock pursuant to the terms of this Note due
to the failure by the Company to have sufficient shares of Common Stock available out of the authorized but unissued shares of Common
Stock (such unavailable number of shares of Common Stock, the “Authorized Failure Shares”), in lieu of delivering such
Authorized Failure Shares to the Holder, the Company shall pay cash in exchange for the redemption of such portion of the Conversion Amount
convertible into such Authorized Failure Shares at a price equal to the sum of (i) the product of (x) such number of Authorized Failure
Shares and (y) the greatest Closing Sale Price of the Common Stock on any Trading Day during the period commencing on the date the Holder
delivers the applicable Conversion Notice with respect to such Authorized Failure Shares to the Company and ending on the date of such
issuance and payment under this Section 11(b); and (ii) to the extent 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 Authorized Failure Shares, any brokerage commissions and
other out-of-pocket expenses, if any, of the Holder incurred in connection therewith. Nothing contained in Section 11(a) or this Section
11(b) shall limit any obligations of the Company under any provision of the Securities Purchase Agreement.


 






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12. REDEMPTIONS.


 


(a) Mechanics.
The Company shall deliver the applicable Event of Default Redemption Price to the Holder in cash within five (5) Business Days after the
Company’s receipt of the Holder’s Event of Default Redemption Notice. If the Holder has submitted a Change of Control Redemption
Notice in accordance with Section 5(b), the Company shall deliver the applicable Change of Control Redemption Price to the Holder in cash
concurrently with the consummation of such Change of Control if such notice is received prior to the consummation of such Change of Control
and within five (5) Business Days after the Company’s receipt of such notice otherwise. The Company shall deliver the applicable
Installment Redemption Price to the Holder in cash on the applicable Installment Date. The Company shall deliver the applicable Company
Optional Redemption Price to the Holder in cash on the applicable Company Optional Redemption Date. Notwithstanding anything herein to
the contrary, in connection with any redemption hereunder, at a time the Holder is entitled to receive a cash payment under any of the
other Transaction Documents, at the option of the Holder delivered in writing to the Company, the applicable Redemption Price hereunder
shall be increased by the amount of such cash payment owed to the Holder under such other Transaction Document and, upon payment in full
or conversion in accordance herewith, shall satisfy the Company’s payment obligation under such other Transaction Document. In the
event of a redemption of less than all of the Conversion Amount of this Note, at the option of the Holder and upon delivery of this Note
to the Company, the Company shall promptly cause to be issued and delivered to the Holder a new Note (in accordance with Section 19(d))
representing the outstanding Principal which has not been redeemed. In the event that the Company does not pay the applicable Redemption
Price to the Holder within the time period required, at any time thereafter and until the Company pays such unpaid Redemption Price in
full, the Holder shall have the option, in lieu of redemption, to require the Company to promptly return to the Holder all or any portion
of this Note representing the Conversion Amount that was submitted for redemption and for which the applicable Redemption Price (together
with any Late Charges thereon) has not been paid. Upon the Company’s receipt of such notice, (x) the applicable Redemption Notice
shall be null and void with respect to such Conversion Amount and (y) the Company shall immediately return this Note, or issue a new Note
(in accordance with Section 19(d)), to the Holder, and in each case the principal amount of this Note or such new Note (as the case
may be) shall be increased by or shall reflect (as the case may be) an amount equal to the difference between (1) the applicable Redemption
Price (as the case may be, and as adjusted pursuant to this Section 12, if applicable) but excluding any amounts by which the Redemption
Price was increased as a result of amounts owed to the Holder under any of the other Transaction Documents as described in the third preceding
sentence above minus (2) the Principal portion of the Conversion Amount submitted for redemption. The Holder’s delivery of a notice
voiding a Redemption Notice and exercise of its rights following such notice shall not affect the Company’s obligations to make
any payments of Late Charges which have accrued prior to the date of such notice with respect to the Conversion Amount subject to such
notice.


 


(b) Redemption
by Other Holders. Upon the Company’s receipt of notice from any of the holders of the Other Notes for redemption or repayment
as a result of an event or occurrence substantially similar to the events or occurrences described in Section 4(b) or Section 5(b) (each,
an “Other Redemption Notice”), the Company shall immediately, but no later than one (1) Business Day after its receipt
thereof, forward to the Holder by electronic mail and overnight courier a copy of such Other Redemption Notice. If the Company receives
a Redemption Notice and one or more Other Redemption Notices, during the seven (7) Business Day period beginning on and including the
date which is two (2) Business Days prior to the Company’s receipt of the Holder’s applicable Redemption Notice and ending
on and including the date which is two (2) Business Days after the Company’s receipt of the Holder’s applicable Redemption
Notice and the Company is unable to redeem all principal, interest and other amounts designated in such Redemption Notice and such Other
Redemption Notices received during such seven (7) Business Day period, then the Company shall redeem a pro rata amount from each holder
of the Notes (including the Holder) based on the principal amount of the Notes submitted for redemption pursuant to such Redemption Notice
and such Other Redemption Notices received by the Company during such seven (7) Business Day period.


 






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13. VOTING
RIGHTS. The Holder shall have no voting rights as the holder of this Note, except as required by law (including, without limitation,
the Delaware General Corporation Law) and as expressly provided in this Note.


 


14. COVENANTS.
Until all of the Notes have been converted, redeemed or otherwise satisfied in accordance with their terms:


 


(a) Rank.
All payments due under this Note (a) shall rank pari passu with all Other Notes and (b) shall be effectively senior to all other
Indebtedness of the Company and its Subsidiaries to the extent of the value of the Collateral (other than Permitted Indebtedness secured
by Permitted Liens).


 


(b) Incurrence
of Indebtedness. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, incur
or guarantee, assume or suffer to exist any Indebtedness (other than (i) the Indebtedness evidenced by this Note and the Other Notes and
(ii) other Permitted Indebtedness).


 


(c) Existence
of Liens. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, allow or suffer
to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts
and contract rights) owned by the Company or any of its Subsidiaries (collectively, “Liens”) other than Permitted Liens.


 


(d) Restricted
Payments. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or indirectly, redeem, defease,
repurchase, repay or make any payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether by way
of open market purchases, tender offers, private transactions or otherwise), all or any portion of any Indebtedness (other than the Notes)
whether by way of payment in respect of principal of (or premium, if any) or interest on, such Indebtedness if at the time such payment
is due or is otherwise made or, after giving effect to such payment, (i) an event constituting an Event of Default has occurred and is
continuing or (ii) an event that with the passage of time and without being cured would constitute an Event of Default has occurred and
is continuing.


 


(e) Restriction
on Redemption and Cash Dividends. The Company shall not, and the Company shall cause each of its Subsidiaries to not, directly or
indirectly, redeem, repurchase or declare or pay any cash dividend or distribution on any of its capital stock (other than cash dividends
and distributions by any Subsidiary to the Company or any wholly-owned U.S. Subsidiary of the Company that has executed and delivered
to the Collateral Agent both the Security Agreement (becoming an additional grantor thereunder) and the Guaranty (each, a “Grantor
Subsidiary”)).


 


(f) Restriction
on Transfer of Assets. Other than a Fundamental Transaction undertaken in compliance with Section 5(a), the Company shall not, and
the Company shall cause each of its Subsidiaries to not, directly or indirectly, sell, lease, license, assign, transfer, spin-off, split-off,
close, convey or otherwise dispose of any assets or rights of the Company or any Subsidiary owned or hereafter acquired whether in a single
transaction or a series of related transactions, other than (i) sales, leases, licenses, assignments, transfers, conveyances and other
dispositions of such assets or rights by the Company and its Subsidiaries in the ordinary course of business consistent with its past
practice, (ii) sales of inventory and product in the ordinary course of business and (iii) sales or dispositions of equipment no longer
required for the operation of business or which is worn out or obsolete.


 






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(g) Maturity
of Indebtedness. Except as set forth on Schedule 14(g), the Company shall not, and the Company shall cause each of its Subsidiaries
to not, directly or indirectly, permit any Indebtedness of the Company or any of its Subsidiaries to mature or accelerate prior to the
Maturity Date (other than repayment of the SBA Loan in accordance with Section 4(dd) of the Securities Purchase Agreement).


 


(h) Change
in Nature of Business. Neither the Company nor any of its Subsidiaries shall, directly or indirectly, engage in any material line
of business substantially different from those lines of business conducted by or publicly contemplated to be conducted by the Company
and each of its Subsidiaries on the Subscription Date or any business substantially related or incidental thereto.


 


(i) Preservation
of Existence, Etc. The Company 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 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; provided that the Company shall not be required to preserve the corporate, partnership, limited liability
company or other existence of any of its Subsidiaries, if the Company in good faith shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and Subsidiaries, taken as a whole.


 


(j) Maintenance
of Properties, Etc. The Company shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its
properties which are necessary or material to the conduct of its business in good working order and condition, ordinary wear and tear
excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the material provisions of all material leases to
which it is a party as lessee or under which it occupies property, so as to prevent any material loss or forfeiture thereof or thereunder.


 


(k) Maintenance
of Intellectual Property. The Company will, and will cause each of its Subsidiaries to, take all action reasonably necessary or advisable
to maintain all of the Intellectual Property Rights (as defined in the Securities Purchase Agreement) of the Company and/or any of its
Subsidiaries that are reasonably necessary or material to the conduct of its business in full force and effect.


 


(l) Maintenance
of Insurance. The Company shall maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business interruption
insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering
such risks as is required by any governmental authority having jurisdiction with respect thereto or as is carried generally in accordance
with sound business practice by companies in similar businesses similarly situated.


 






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(m) Transactions
with Affiliates. Other than in respect of transactions between the Company and a Grantor Subsidiary, the Company shall not, nor shall
it permit any of its Subsidiaries to, enter into, renew, extend or be a party to, any transaction or series of related transactions (including,
without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of
any kind) with any affiliate, except transactions in the ordinary course of business in a manner and to an extent consistent with past
practice and necessary or desirable for the prudent operation of its business, for fair consideration and on terms no less favorable to
it or its Subsidiaries than would be obtainable in a comparable arm’s length transaction with a Person that is not an affiliate
thereof.


 


(n) Restricted
Issuances. The Company shall not, directly or indirectly, without the prior written consent of the holders of a majority in aggregate
principal amount of the Notes then outstanding, (i) issue any Notes (other than as contemplated by the Securities Purchase Agreement and
the Notes) or (ii) issue any other securities that would cause a breach or default under the Notes.


 


(o) New
Subsidiaries. Simultaneously with the acquisition or formation of each New Subsidiary, but only to the extent required by Section
5(m) of the Security Agreement, the Company shall cause such New Subsidiary to execute, and deliver to each holder of Notes, all Security
Documents (as defined in the Securities Purchase Agreement) and Guaranties (as defined in the Securities Purchase Agreement), substantially
in all material respects in the same form as those documents which have been executed in connection herewith, as reasonably requested
by the Collateral Agent or the Required Holders (as defined in the Securities Purchase Agreement), as applicable. The Company shall also
deliver to the Collateral Agent an opinion of counsel to such New Subsidiary that is reasonably satisfactory to the Collateral Agent and
the Required Holders covering such legal matters with respect to such New Subsidiary becoming a guarantor of the Company’s obligations,
executing and delivering the Security Document and the Guaranties and any other matters that the Collateral Agent or the Required Holders
may reasonably request. The Company shall deliver, or cause the applicable Subsidiary to deliver to the Collateral Agent, each of the
physical stock certificates of such New Subsidiary, along with undated stock powers for each such certificates, executed in blank (or,
if any such shares of capital stock are uncertificated, confirmation and evidence reasonably satisfactory to the Collateral Agent and
the Required Holders that the security interest in such uncertificated securities has been transferred to and perfected by the Collateral
Agent, in accordance with Sections 8-313, 8-321 and 9-115 of the Uniform Commercial Code or any other similar or local or foreign law
that may be applicable).


 


(p) Change
in Collateral; Collateral Records. The Company shall (i) give the Collateral Agent not less than thirty (30) days’ prior written
notice of any change in the location of any Collateral (as defined in the Security Documents), other than to locations set forth in the
Perfection Certificate (as defined in the Securities Purchase Agreement) hereto and with respect to which the Collateral Agent has filed
financing statements and otherwise fully perfected its Liens thereon, (ii) advise the Collateral Agent promptly, in sufficient detail,
of any material adverse change relating to the type, quantity or quality of the Collateral or the Lien granted thereon and (iii) execute
and deliver, and cause each of its Subsidiaries to execute and deliver, to the Collateral Agent for the benefit of the Holder and holders
of the Other Notes from time to time, solely for the Collateral Agent’s convenience in maintaining a record of Collateral, such
written statements and schedules as the Collateral Agent or any Holder may reasonably require, designating, identifying or describing
the Collateral. For the avoidance of doubt, if anything in this Section 14(p) conflicts with the terms of the Security Agreement, the
terms of the Security Agreement shall govern, and shall be incorporated by reference herein, mutatis mutandis.


 






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(q) Controlled
Accounts.


 


(i) General.
The Company shall establish and maintain cash management services of a type and on terms reasonably satisfactory to Holder at and each
bank listed on Schedule 14(q)(i) attached hereto (each a “Controlled Account Bank”) and cause all cash and cash
equivalents of the Company or any of its Subsidiaries to be held in Accounts (as defined in the Security Agreement) at one or more Controlled
Account Banks in accordance therewith. Subject to the foregoing, the Company shall establish and maintain Controlled Account Agreements
with the Collateral Agent (as each such term is defined in the Security Agreement) and each Controlled Account Bank, in form and substance
reasonably acceptable to the Collateral Agent and the Required Holders, with respect to each account maintained at such bank on behalf
of Company and/or its Subsidiaries (each such account a “Controlled Account” and collectively, the “Controlled
Accounts”), including, without limitation, the Operating Accounts (as defined below). Each such Controlled Account Agreement
shall provide, among other things, that (A) upon the occurrence of an Event of Default, the Controlled Account Bank will comply with any
and all instructions originated by the Collateral Agent directing the disposition of the funds in the Controlled Accounts without further
consent by the Company or any such Subsidiaries, (B) the Controlled Account Bank waives, subordinates or agrees not to exercise any rights
of setoff or recoupment or any other claim against the applicable Controlled Account other than for payment of its service fees and other
charges directly related to the administration of such Controlled Account and for returned checks or other items of payment, and (C) upon
the occurrence of an Event of Default, with respect to each Controlled Account (collectively, the “Operating Accounts”),
upon the instruction of Collateral Agent (an “Activation Instruction”), the Controlled Account Bank shall not comply
with any instructions, directions or orders of any form with respect to the Operating Accounts other than instructions, directions or
orders originated by Collateral Agent. The Collateral Agent shall not issue an Activation Instruction with respect to the Operating Accounts
unless an Event of Default has occurred and is continuing at the time such Activation Instruction is issued.


 


(ii) Additional
Controlled Account Agreements. If at any time on or after the Closing Date, the average daily balance of any Account of the Company
or any of its Subsidiaries that is not subject to a Controlled Account Agreement, in form and substance reasonably satisfactory to the
Collateral Agent and the Required Holders, in favor of the Collateral Agent exceeds $50,000 ($250,000 in the case of the Company’s
RBC Account) (the “Maximum Per Account Free Cash Amount”) during any calendar month (including the calendar month in
which the Closing Date occurs), the Company shall either (x) within fourteen (14) calendar days following the last day of such calendar
month, deliver to the Collateral Agent a Controlled Account Agreement, in form and substance reasonably satisfactory to the Collateral
Agent, duly executed by the Company and the depositary bank in which such Account is maintained or (y) within two (2) Business Days following
such date, effect a transfer to a Controlled Account of a cash amount sufficient to reduce the amount of the Company’s or the applicable
Subsidiary’s cash held in such Account to an amount not in excess of the Maximum Per Account Free Cash Amount.


 


(iii) Maximum
Free Cash Amount. Notwithstanding anything to the contrary contained in Section 14(q)(ii) above, and without limiting any of the foregoing,
if at any time on or after the Closing Date, the total aggregate amount of the Company’s and any of its Subsidiaries, in the aggregate,
cash that is not held in a Controlled Account exceeds $100,000 ($500,000 in the case of the Company’s RBC Account) (the “Maximum
Free Cash Amount”), the Company shall within two (2) Business Days following such date, effect a transfer to a Controlled Account
of a cash amount sufficient to reduce the total aggregate amount of the Company’s and its Subsidiaries’, as applicable, cash
that is not held in a Controlled Account to an amount not in excess of the Maximum Free Cash Amount.


 


(iv) For
the avoidance of doubt, if anything in this Section 14(q) conflicts with the terms of the Security Agreement, the terms of the Security
Agreement shall govern, and shall be incorporated by reference herein, mutatis mutandis.


 






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(r) Financial
Covenants; Announcement of Operating Results.


 


(i) Available
Cash Test. At any time any Notes remain outstanding, the Company’s Available Cash as of the last day of each calendar month,
commencing on October 31, 2021, shall equal or exceed $8 million (the “Available Cash Test”), which amount shall be
reduced by $1 million for each $3 million of Principal paid or otherwise converted pursuant to the terms of this Note (whether upon an
Installment Redemption, Installment Conversion, Conversion or redemption), subject all cases to a minimum of $5 million of Available Cash.


 


(ii) Cash
Burn. At any time any Notes remains outstanding, with respect to any given calendar month (each, a “Current Calendar Month”)
(x) the Available Cash on the last calendar day in such Current Calendar Month (each, a “Financial Test Measuring Date”)
shall be greater than or equal to (A) the Available Cash on the last calendar day of the month six months prior to such Current Calendar
Month less (B) $8 million, and (y) the Available Cash on the applicable Financial Test Measuring Date shall be greater than or equal to
(A) the Available Cash on the last calendar day of the month three month prior to such Current Calendar Month less (B) $4.5 million, (the
“Cash Burn Test”, and together with the Available Cash Test, each a “Financial Test”); provided
however, that the Holder agrees that the $4.5 million in cash payments made by the Company at closing pursuant to the stock purchase agreement
with The Nav People Inc. d/b/a/ “365 Cannabis” shall be added back to the Available Cash on the applicable Financial Test
Measuring Date for the purposes of calculating the Cash Burn Test in the six month and three month period in which the transaction closed.


 


(iii) Operating
Results Announcement. On or prior to the first (1st) calendar day after each Financial Test Measuring Date (each such date,
a “Certification Date”), the Company shall provide to the Holders a certification (each, a “Certification
Notice”), executed on behalf of the Company by the Chief Financial Officer of the Company, certifying whether or not that the
Company has satisfied each Financial Test for such Financial Test Measuring Date (and, if a Financial Test has not been met, which Financial
Test has not been satisfied) and that such Certification Notice either (x) does not constitute material non-public information or (y)
has concurrently been publicly disclosed as part of a Quarterly Report on Form 10-Q, Annual Report on Form 10-K or on a Current Report
on Form 8-K, or otherwise, (each, a “Financial Covenant Filing”). For the avoidance of doubt, on each Certification
Date, solely if a Financial Test has not been satisfied for such applicable Financial Test Measuring Date, the Company shall publicly
disclose (as part of a Financial Covenant Filing), that such Financial Test has (or Financial Tests have) not been satisfied for such
applicable Financial Test Measuring Date (each, a “Financial Covenant Failure Filing”). Each Financial Covenant Failure
Filing shall also include the applicable Certification Notice and specify (x) that the Company is in breach of such applicable Financial
Test(s) for such Financial Test Measuring Date with specificity and (y) the fact that an Event of Default has occurred under the Notes.
From and after each Financial Covenant Filing, the Company shall have disclosed all material, non-public information (if any) provided
to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection
herewith on or prior to the time of such applicable Financial Covenant Filing.


 






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(s) Independent
Investigation. At the request of the Holder either (x) at any time when an Event of Default has occurred and is continuing, (y) upon
the occurrence of an event that with the passage of time or giving of notice would constitute an Event of Default or (z) at any time the
Holder reasonably believes an Event of Default may have occurred or be continuing, the Company shall hire an independent, reputable investment
bank selected by the Company and approved by the Holder to investigate as to whether any breach of this Note has occurred (the “Independent
Investigator”). If the Independent Investigator determines that such breach of this Note has occurred, the Independent Investigator
shall notify the Company of such breach and the Company shall deliver written notice to each holder of a Note of such breach. In connection
with such investigation, the Independent Investigator may, during normal business hours, inspect all contracts, books, records, personnel
(subject to applicable law), offices and other facilities and properties of the Company and its Subsidiaries. The Company shall furnish
the Independent Investigator with such financial and operating data and other information with respect to the business and properties
of the Company as the Independent Investigator may reasonably request. The Company shall permit the Independent Investigator to discuss
the affairs, finances and accounts of the Company with, and to make proposals and furnish advice with respect thereto to, the Company’s
officers, directors, key employees and independent public accountants or any of them (and by this provision the Company authorizes said
accountants to discuss with such Independent Investigator the finances and affairs of the Company and any Subsidiaries), all at such reasonable
times, upon reasonable notice, and as often as may be reasonably requested. Notwithstanding anything contained herein: (i) the use of
the Independent Investigator in any sole instance shall not cost the Company and its Subsidiaries in excess of $50,000; (ii) the use of
the Independent Investigator in the aggregate while the Notes are outstanding shall not cost the Company and its Subsidiaries in excess
of $100,000; (iii) the use of the Independent Investigator shall not be more than twice per fiscal year regardless of the number of Events
of Default occurring; (iv) the Independent Investigator shall not be permitted to access the Company and its Subsidiaries, its books and
records and its officers, directors, key employees and independent public accountants or any of them for greater than thirty (30) days
in any fiscal year; and (v) the Company may assert privilege or confidentiality over any information requested by the Independent Investigator
and, so long as such assertion is reasonably made, the failure to provide such information shall not constitute an Event of Default hereunder.


 


15. SECURITY.
This Note and the Other Notes are secured to the extent and in the manner set forth in the Transaction Documents (including, without limitation,
the Security Agreement, the other Security Documents and the Guaranties).


 


16. DISTRIBUTION
OF ASSETS. In addition to any adjustments pursuant to Sections 6 and 7 above, if the Company shall declare or make any dividend or
other distributions of its assets (or rights to acquire its assets) to any or all holders of shares of Common Stock, by way of return
of capital or otherwise (including without limitation, any distribution of cash, stock or other securities, property or options by way
of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (the “Distributions”),
then the Holder will be entitled to such Distributions as if the Holder had held the number of shares of Common Stock acquirable upon
complete conversion of this Note (without taking into account any limitations or restrictions on the convertibility of this Note and assuming
for such purpose that the Note was converted at the Alternate Conversion Price as of the applicable record date) immediately prior to
the date on which a record is taken for such Distribution or, if no such record is taken, the date as of which the record holders of Common
Stock are to be determined for such Distributions (provided, however, that to the extent that the Holder’s right to participate
in any such Distribution would result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, then the Holder
shall not be entitled to participate in such Distribution to the extent of the Maximum Percentage (and shall not be entitled to beneficial
ownership of such shares of Common Stock as a result of such Distribution (and beneficial ownership) to the extent of any such excess)
and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time or times, if ever, as its
right thereto would not result in the Holder and the other Attribution Parties exceeding the Maximum Percentage, at which time or times
the Holder shall be granted such Distribution (and any Distributions declared or made on such initial Distribution or on any subsequent
Distribution held similarly in abeyance) to the same extent as if there had been no such limitation).


 






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17. AMENDING
THE TERMS OF THIS NOTE. Except for Section 3(d), which may not be amended, modified or waived by the parties hereto, the prior written
consent of the Company and the Required Holders (as defined in the Securities Purchase Agreement) shall be required for any amendment,
modification or waiver to this Note. Any amendment, modification or waiver so approved shall be binding upon all existing and future holders
of this Note and any Other Notes; provided, however, that no such change, waiver or, as applied to any of the Notes held by any particular
holder of Notes, shall, without the written consent of that particular holder, (i) reduce the amount of Principal, reduce the amount of
accrued and unpaid Interest, or extend the Maturity Date, of the Notes, (ii) disproportionally and adversely affect any rights under the
Notes of any holder of Notes; or (iii) modify any of the provisions of, or impair the right of any holder of Notes under, this Section
17. From the date hereof and while any Notes are outstanding, the Company shall not (i) treat any holder of Notes in a manner that is
more favorable than to any other similarly situated holders of Notes, or (ii) treat any holder(s) of Notes in a manner that is less favorable
than any other holder of Notes (the “Equal Treatment Condition”).


 


18. TRANSFER.
This Note and any shares of Common Stock issued upon conversion of this Note may be offered, sold, assigned or transferred by the Holder
without the consent of the Company, subject only to the provisions of Section 2(g) of the Securities Purchase Agreement.


 


19. REISSUANCE
OF THIS NOTE.


 


(a) Transfer.
If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and
deliver upon the order of the Holder a new Note (in accordance with Section 19(d)), registered as the Holder may request, representing
the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new
Note (in accordance with Section 19(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any
assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(iii) following conversion
or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on
the face of this Note.


 


(b) 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 (as to which a written certification and the indemnification contemplated below shall suffice as such evidence),
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable
form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder
a new Note (in accordance with Section 19(d)) representing the outstanding Principal.


 


(c) Note
Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office
of the Company, for a new Note or Notes (in accordance with Section 19(d) and in principal amounts of at least $1,000) representing in
the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding Principal
as is designated by the Holder at the time of such surrender.


 






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(d) Issuance
of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall be
of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or
in the case of a new Note being issued pursuant to Section 19(a) or Section 19(c), the Principal designated by the Holder which, when
added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed the Principal remaining
outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance date, as indicated on the face
of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and
(v) shall represent accrued and unpaid Interest and Late Charges on the Principal and Interest of this Note (or in the case of a new Note
being issued pursuant to Section 19(a) or Section 19(c), accrued and unpaid Interest and Late Charges applicable to such new Note, when
added to the Interest and Late Charges applicable to such other new Notes issued in connection with such issuance, does not exceed the
accrued and unpaid Interest and Late Charges applicable to this Note immediately prior to such issuance of new Notes), from the Issuance
Date.


 


20. 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 and any of the other Transaction Documents at law or in equity (including a decree
of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual damages
for any failure by the Company to comply with the terms of this Note. Except as otherwise expressly provided for in the Transaction Documents,
the Company shall not be liable for any incidental, indirect, special or consequential damages of any nature whatsoever, including, but
not limited to, loss of anticipated profits. No failure on the part of the Holder to exercise, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Holder of any right, power
or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. In addition, the exercise
of any right or remedy of the Holder at law or equity or under this Note or any of the documents shall not be deemed to be an election
of Holder’s rights or remedies under such documents or at law or equity. The Company covenants to the Holder that there shall be
no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with
respect to payments, conversion and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall
not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company
acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for
any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder
shall be entitled, in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive
or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and
without posting a bond or other security. The Company shall provide all information and documentation to the Holder that is requested
by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note.


 






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21. PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection or enforcement or
is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to
enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership of the Company or other proceedings
affecting Company creditors’ rights and involving a claim under this Note, then the Company shall pay the costs incurred by the
Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding,
including, without limitation, attorneys’ fees and disbursements. The Company expressly acknowledges and agrees that no amounts
due under this Note shall be affected, or limited, by the fact that the purchase price paid for this Note was less than the original Principal
amount hereof.


 


22. CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed against
any such 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. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine,
feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include”
and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Note instead of just the provision in which
they are found. Unless expressly indicated otherwise, all section references are to sections of this Note. Terms used in this Note and
not otherwise defined herein, but defined in the other Transaction Documents, shall have the meanings ascribed to such terms on the Closing
Date in such other Transaction Documents unless otherwise consented to in writing by the Holder.


 


23. 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. No waiver shall be effective unless it is in writing and signed by an authorized
representative of the waiving party. Notwithstanding the foregoing, nothing contained in this Section 23 shall permit any waiver of any
provision of Section 3(d).


 


24. DISPUTE
RESOLUTION.


 


(a) Submission
to Dispute Resolution.


 


(i) In
the case of a dispute relating to a Closing Bid Price, a Closing Sale Price, a Market Price, an Alternate Conversion Price, a Conversion
Price, an Installment Conversion Price, an Installment Acceleration Price, an Installment Acceleration Floor Price, a Black Scholes Consideration
Value, a VWAP or a fair market value or the arithmetic calculation of a Conversion Rate, or the applicable Redemption Price (as the case
may be) (including, without limitation, a dispute relating to the determination of any of the foregoing), the Company or the Holder (as
the case may be) shall submit the dispute to the other party via electronic mail and overnight courier (A) if by the Company, within two
(2) Business Days after the occurrence of the circumstances giving rise to such dispute or (B) if by the Holder at any time after the
Holder learned of the circumstances giving rise to such dispute. If the Holder and the Company are unable to promptly resolve such dispute
relating to such Closing Bid Price, such Closing Sale Price, such Market Price, such Alternate Conversion Price, such Conversion Price,
such Installment Conversion Price, such Installment Acceleration Price, such Installment Acceleration Floor Price, such Black Scholes
Consideration Value, such VWAP or such fair market value, or the arithmetic calculation of such Conversion Rate or such applicable Redemption
Price (as the case may be), at any time after the second (2nd) Business Day following such initial notice by the Company or
the Holder (as the case may be) of such dispute to the Company or the Holder (as the case may be), then the Holder may with the consent
of the Company (not to be unreasonably withheld or delayed), select an independent, reputable investment bank to resolve such dispute.


 






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(ii) The
Holder and the Company shall each deliver to such investment bank (A) a copy of the initial dispute submission so delivered in accordance
with the first sentence of this Section 24 and (B) written documentation supporting its position with respect to such dispute, in each
case, no later than 5:00 p.m. (New York time) by the fifth (5th) Business Day immediately following the date on which the Holder
selected such investment bank (the “Dispute Submission Deadline”) (the documents referred to in the immediately preceding
clauses (A) and (B) are collectively referred to herein as the “Required Dispute Documentation”) (it being understood
and agreed that if either the Holder or the Company fails to so deliver all of the Required Dispute Documentation by the Dispute Submission
Deadline, then the party who fails to so submit all of the Required Dispute Documentation shall no longer be entitled to (and hereby waives
its right to) deliver or submit any written documentation or other support to such investment bank with respect to such dispute and such
investment bank shall resolve such dispute based solely on the Required Dispute Documentation that was delivered to such investment bank
prior to the Dispute Submission Deadline). Unless otherwise agreed to in writing by both the Company and the Holder or otherwise requested
by such investment bank, neither the Company nor the Holder shall be entitled to deliver or submit any written documentation or other
support to such investment bank in connection with such dispute (other than the Required Dispute Documentation).


 


(iii) The
Company and the Holder shall cause such investment bank to determine the resolution of such dispute and notify the Company and the Holder
of such resolution no later than ten (10) Business Days immediately following the Dispute Submission Deadline. The fees and expenses of
such investment bank shall be borne solely by the Company, and such investment bank’s resolution of such dispute shall be final
and binding upon all parties absent manifest error.


 


(b) Miscellaneous.
The Company expressly acknowledges and agrees that (i) this Section 24 constitutes an agreement to arbitrate between the Company and the
Holder (and constitutes an arbitration agreement) under § 7501, et seq. of the New York Civil Practice Law and Rules (“CPLR”)
and that the Holder is authorized to apply for an order to compel arbitration pursuant to CPLR § 7503(a) in order to compel compliance
with this Section 24, (ii) a dispute relating to a Conversion Price includes, without limitation, disputes as to (A) whether an issuance
or sale or deemed issuance or sale of Common Stock occurred under Section 7(a), (B) the consideration per share at which an issuance or
deemed issuance of Common Stock occurred, (C) whether any issuance or sale or deemed issuance or sale of Common Stock was an issuance
or sale or deemed issuance or sale of Excluded Securities, (D) whether an agreement, instrument, security or the like constitutes an Option
or Convertible Security and (E) whether a Dilutive Issuance occurred, (iii) the terms of this Note and each other applicable Transaction
Document shall serve as the basis for the selected investment bank’s resolution of the applicable dispute, such investment bank
shall be entitled (and is hereby expressly authorized) to make all findings, determinations and the like that such investment bank determines
are required to be made by such investment bank in connection with its resolution of such dispute and in resolving such dispute such investment
bank shall apply such findings, determinations and the like to the terms of this Note and any other applicable Transaction Documents,
(iv) the Holder (and only the Holder), in its sole discretion, shall have the right to submit any dispute described in this Section 24
to any state or federal court sitting in The City of New York, Borough of Manhattan in lieu of utilizing the procedures set forth in this
Section 24 and (v) nothing in this Section 24 shall limit the Holder from obtaining any injunctive relief or other equitable remedies
(including, without limitation, with respect to any matters described in this Section 24).


 


25. NOTICES;
CURRENCY; PAYMENTS.


 


(a) Notices.
Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with
Section 9(f) of the Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of all actions taken
pursuant to this Note, including in reasonable detail a description of such action and the reason therefore. Without limiting the generality
of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Conversion Price, setting
forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least five (5) Trading Days prior to the date
on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Stock, (B) with
respect to any grant, issuances, or sales of any Options, Convertible Securities or rights to purchase stock, warrants, securities or
other property to holders of shares of Common Stock (other than Excluded Securities) or (C) for determining rights to vote with respect
to any Fundamental Transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public
prior to or in conjunction with such notice being provided to the Holder. Notwithstanding the foregoing, as long as any Notes remain outstanding,
if the Company sells any shares of Common Stock in an at-the-market offering in any given calendar month, the Company shall disclose (in
the Certification Notice with respect to such prior calendar month) each sale of Common Stock pursuant to any at-the-market offering made
during such prior calendar month (including, without limitation, the purchase prices of any shares of Common Stock sold in such at-the-market
offering during such prior calendar month, the aggregate amount of each sale at each such purchase price and the aggregate amount sold
in the prior twelve month period (or, if less, the period commencing on the Issuance Date through, and including, the last calendar day
in such prior calendar month)).


 






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(b) Currency.
All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts owing under
this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar
equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation
to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange rate as published in the Wall
Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to,
or over, a period of time, the date of calculation shall be the final date of such period of time).


 


(c) Payments.
Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, unless otherwise expressly set forth herein,
such payment shall be made in lawful money of the United States of America by wire transfer of immediately available funds pursuant to
the Holder’s wire transfer instructions previously provided. 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. Any amount
of Principal or other amounts due under the Transaction Documents which is not paid when due (except to the extent such unpaid amount
is then accruing Interest at the Default Rate or if it is itself a Late Charge, in which case no additional Late Charges thereon shall
accrue hereunder) shall result in a late charge being incurred and payable by the Company in an amount equal to interest on such amount
at the Default Rate from the date such amount was due until the same is paid in full or such failure or default is cured or waived, as
applicable (each, a “Late Charge”). Notwithstanding any terms or conditions hereof, and for greater certainty: (i)
Late Charges owing or payable in respect of Transaction Documents (other than this Note) shall not, other than at the election of the
Company in its sole discretion, be convertible into shares of Common Stock hereunder; (ii) any amount outstanding hereunder accruing Interest
at the Default Rate shall not ever simultaneously accrue Late Charges hereunder, (iii) unpaid Late Charges shall accrue, but shall not
compound, hereunder, and (iv) any accrued and unpaid Late Charges outstanding as of any given Interest Date shall, unless earlier paid
at the election of the Company, be due and payable in cash on such Interest Date.


 


26. CANCELLATION.
After all Principal, accrued Interest, Late Charges and other amounts at any time owed on this Note have been paid in full, this Note
shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.


 


27. WAIVER
OF NOTICE. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other
demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note and the Securities Purchase
Agreement.


 






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28. GOVERNING
LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation
and performance of this Note shall be governed by, the internal laws of the State of New York, without giving effect to any choice of
law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Except as otherwise required by Section 24 above, the Company hereby
irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. Nothing contained herein (i) shall be deemed or operate to preclude the Holder from bringing suit or taking other
legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on
any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder or (ii)
shall limit, or shall be deemed or construed to limit, any provision of Section 24. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING
OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


29. JUDGMENT
CURRENCY.


 


(a) If
for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert
into any other currency (such other currency being hereinafter in this Section 29 referred to as the “Judgment Currency”)
an amount due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately
preceding:


 


(i) the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or


 


(ii) the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 29(a)(ii) being hereinafter referred to as the “Judgment Conversion Date”).


 


(b) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 29(a)(ii) above, there is a change in the Exchange
Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay
such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.


 


(c) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Note.


 






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


 


31. MAXIMUM
PAYMENTS. Without limiting Section 9(d) of the Securities Purchase Agreement, nothing contained herein shall be deemed to establish
or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that
the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of
such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.


 


32. CERTAIN
DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:


 


(a) “1933
Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.


 


(b) “1934
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.


 


(c) “Adjustment
Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or
sale (or deemed issuance or sale in accordance with Section 7) of shares of Common Stock (other than rights of the type described in Section
6(a) hereof) that could result in a decrease in the net consideration received by the Company in connection with, or with respect to,
such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).


 


(d)
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled
by, or is under common control with, such Person, it being understood for purposes of this definition that “control” of a
Person means the power directly or indirectly either to vote 10% or more of the stock having ordinary voting power for the election of
directors of such Person or direct or cause the direction of the management and policies of such Person whether by contract or otherwise.


 






    37


     


    

 


(e) “Alternate
Conversion Price” means, with respect to any Alternate Conversion that price which shall be the lower of (i) the applicable
Conversion Price as in effect on the applicable Conversion Date of the applicable Alternate Conversion and (ii) the greater of (x) the
Floor Price then in effect and (y) 80% of the Market Price as of such Alternate Conversion Date with respect thereto.


 


(f) “Alternate
Conversion Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant to
wire instructions delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the higher of (I)
the highest price that the Common Stock trades at on the Trading Day immediately preceding the relevant Alternate Conversion Date and
(II) the applicable Alternate Conversion Price and (B) the difference obtained by subtracting (I) the number of shares of Common Stock
delivered (or to be delivered) to the Holder on the applicable Share Delivery Deadline with respect to such Alternate Conversion from
(II) the quotient obtained by dividing (x) such portion of the Conversion Amount that is to be converted into shares of Common Stock in
such applicable Alternate Conversion, by (y) the applicable Alternate Conversion Price without giving effect to clause (x) of such definition.


 


(g) “Approved
Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the Subscription Date pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee,
officer or director for services provided to the Company in their capacity as such.


 


(h)
“Attribution Parties” means, collectively, the following Persons and entities: (i) any investment vehicle, including,
any funds, feeder funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or
advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the
Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any
of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated
with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the 1934 Act. For clarity, the purpose of the
foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage.


 


(i) “Available
Cash” means, with respect to any date of determination, an amount equal to the aggregate amount of the Cash of the Company and
its U.S. Subsidiaries (excluding for this purpose cash held in restricted accounts or otherwise unavailable for unrestricted use by the
Company or any of its U.S. Subsidiaries for any reason) as of such date of determination held in bank accounts of financial banking institutions
in the United States of America.


 


(j) “Black
Scholes Consideration Value” means the value of the applicable Option, Convertible Security or Adjustment Right (as the case
may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV”
function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day
immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Option, Convertible
Security or Adjustment Right (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period
equal to the remaining term of such Option, Convertible Security or Adjustment Right (as the case may be) as of the date of issuance of
such Option, Convertible Security or Adjustment Right (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility
equal to the greater of 100% and the 100 day volatility obtained from the “HVT” function on Bloomberg (determined utilizing
a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Option, Convertible Security
or Adjustment Right (as the case may be).


 






    38


     


    

 


(k) “Bloomberg”
means Bloomberg, L.P.


 


(l) “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required
by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any
other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so
long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are
open for use by customers on such day.


 


(m) “Cash”
of the Company and its Subsidiaries on any date shall be determined from such Persons’ books maintained in accordance with GAAP,
and means, without duplication, the cash and cash equivalents accrued by the Company and its wholly owned, direct and indirect, U.S. Subsidiaries
on a consolidated basis on such date.


 


(n) “Change
of Control” means any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect, wholly-owned
Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification of the shares of
Common Stock in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization or reclassification
continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and, directly or indirectly,
are, in all material respects, the holders of the voting power of the surviving entity (or entities with the authority or voting power to
elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such reorganization,
recapitalization or reclassification, (iii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction
of incorporation of the Company or any of its Subsidiaries or (iv) in connection with any bona fide strategic or commercial acquisitions,
mergers, licensing arrangements, and strategic partnerships (each, a “Strategic Transaction”) in which (x) the Company
has complied in all respects with the terms and conditions of Section 5(a) hereof and (y) with respect to all Strategic Transactions in
any given six month rolling period, the holders of the voting power of the Company (or the surviving entity (or entities with the authority
or voting power to elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or
entities)) prior to any such Strategic Transaction in such six month period are, in all material respects, the holders of at least 70%
of the voting power of the Company (or the surviving entity (or entities with the authority or voting power to elect the members
of the board of directors (or their equivalent if other than a corporation) of such entity or entities)) after all Strategic Transactions
in such six month period.


 






    39


     


    

 


(o) “Change
of Control Redemption Premium” means 115%.


 


(p) “Closing
Bid Price” and “Closing Sale Price” means, for any security as of any date, the last closing bid price and
last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market
begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may
be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg,
or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed
or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of
such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing
bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices,
respectively, of any market makers for such security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly
Pink Sheets LLC). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of
the foregoing bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair
market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market
value of such security, then such dispute shall be resolved in accordance with the procedures in Section 24. All such determinations shall
be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during
such period.


 


(q) “Closing
Date” shall have the meaning set forth in the Securities Purchase Agreement, which date is the date the Company initially issued
Notes pursuant to the terms of the Securities Purchase Agreement.


 


(r) “Common
Stock” means (i) the Company’s shares of common stock, $0.0001 par value per share, and (ii) any capital stock into which
such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(s) “Conversion
Floor Price Condition” means that the relevant Alternate Conversion Price or Installment Conversion Price, as applicable, is
being determined based on clause (x) of such definitions.


 


(t) “Convertible
Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly
or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares
of Common Stock.


 


(u) “Current
Subsidiary” means any Person in which the Company on the Subscription Date, directly or indirectly, (i) owns more than 50% of
the outstanding capital stock, equity or similar interest of such Person or (ii) controls all or substantially all of the business, operations
or administration of such Person, and each of the foregoing, collectively, “Current Subsidiaries”.


 


(v) “Eligible
Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market or the
Principal Market.


 






    40


     


    

 


(w) “Equity
Conditions” means, with respect to a given date of determination: (i) on each day during the period beginning thirty calendar
days prior to such applicable date of determination and ending on and including such applicable date of determination either (x) one or
more Registration Statements filed pursuant to the Registration Rights Agreement shall be effective and the prospectus contained therein
shall be available on such applicable date of determination (with, for the avoidance of doubt, any shares of Common Stock previously sold
pursuant to such prospectus deemed unavailable) for the resale of all shares of Common Stock to be issued in connection with the event
requiring this determination (or issuable upon conversion of the Conversion Amount being redeemed, as applicable, in the event requiring
this determination at the Alternate Conversion Price then in effect (without regard to any limitations on conversion set forth herein))
(each, a “Required Minimum Securities Amount”), in each case, in accordance with the terms of the Registration Rights
Agreement and there shall not have been during such period any Grace Periods (as defined in the Registration Rights Agreement) or (y)
all Registrable Securities shall be eligible for sale pursuant to Rule 144 (as defined in the Securities Purchase Agreement) without the
need for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion of
the Notes, other issuance of securities with respect to the Notes) and no Current Public Information Failure (as defined in the Registration
Rights Agreement) exists or is continuing; (ii) on each day during the period beginning thirty calendar days prior to the applicable date
of determination and ending on and including the applicable date of determination (the “Equity Conditions Measuring Period”),
the Common Stock (including all Registrable Securities) is listed or designated for quotation (as applicable) on an Eligible Market and
shall not have been suspended from trading on an Eligible Market (other than suspensions of not more than two (2) days and occurring prior
to the applicable date of determination due to business announcements by the Company) nor shall delisting or suspension by an Eligible
Market be reasonably likely to occur in the sixty (60) calendar day period immediately following such date of determination; (iii) during
the Equity Conditions Measuring Period, the Company shall have delivered all shares of Common Stock issuable upon conversion of this Note
on a timely basis as set forth in Section 3 hereof and all other shares of capital stock required to be delivered by the Company on a
timely basis as set forth in the other Transaction Documents; (iv) except with respect to a Company Optional Redemption, any shares of
Common Stock to be issued in connection with the event requiring determination (or issuable upon conversion of the Conversion Amount being
redeemed in the event requiring this determination) may be issued in full without violating Section 3(d) hereof; (v) except with respect
to a Company Optional Redemption, any shares of Common Stock to be issued in connection with the event requiring determination (or issuable
upon conversion of the Conversion Amount being redeemed in the event requiring this determination (without regards to any limitations
on conversion set forth herein)) may be issued in full without violating the rules or regulations of the Eligible Market on which the
Common Stock is then listed or designated for quotation (as applicable); (vi) on each day during the Equity Conditions Measuring Period,
no public announcement of a pending, proposed or intended Fundamental Transaction shall have occurred which has not been abandoned, terminated
or consummated; (vii) the Company shall have no knowledge of any fact that would reasonably be expected to cause (1) any Registration
Statement required to be filed pursuant to the Registration Rights Agreement to not be effective or the prospectus contained therein to
not be available for the resale of the applicable Required Minimum Securities Amount of Registrable Securities in accordance with the
terms of the Registration Rights Agreement or (2) any Registrable Securities to not be eligible for sale pursuant to Rule 144 without
the need for registration under any applicable federal or state securities laws (in each case, disregarding any limitation on conversion
of the Notes, other issuance of securities with respect to the Notes) and no Current Public Information Failure exists or is continuing;
(viii) the Holder shall not be in (and no other holder of Notes shall be in) possession of any material, non-public information provided
to any of them by the Company, any of its Subsidiaries or any of their respective affiliates, employees, officers, representatives, agents
or the like; (ix) on each day during the Equity Conditions Measuring Period, the Company otherwise shall have been in compliance with
each, and shall not have breached any representation or warranty in any material respect (other than representations or warranties subject
to material adverse effect or materiality, which may not be breached in any respect) or any covenant or other term or condition of any
Transaction Document, including, without limitation, the Company shall not have failed to timely make any payment pursuant to any Transaction
Document; (x) on each Trading Day during the Equity Conditions Measuring Period, there shall not have occurred any Volume Failure or Price
Failure as of such applicable date of determination; (xi) on the applicable date of determination (A) no Authorized Share Failure shall
exist or be continuing and all shares of Common Stock to be issued in connection with the event requiring this determination (or issuable
upon conversion of the Conversion Amount being redeemed), as applicable, in the event requiring this determination at the Alternate Conversion
Price then in effect (without regard to any limitations on conversion set forth herein) are available under the certificate of incorporation
of the Company and reserved by the Company to be issued pursuant to the Notes and (B) all shares of Common Stock to be issued in connection
with the event requiring this determination (or issuable upon conversion of the Conversion Amount being redeemed in the event requiring
this determination (without regards to any limitations on conversion set forth herein)) may be issued in full without resulting in an
Authorized Share Failure; (xii) on each day during the Equity Conditions Measuring Period, there shall not have occurred and there shall
not exist an Event of Default or an event that with the passage of time or giving of notice would reasonably be likely to constitute an
Event of Default; (xiii) no bone fide dispute shall exist, by and between any of holder of Notes and the Company, on the one hand, and
the Principal Market (or such applicable Eligible Market in which the Common Stock of the Company is then principally trading) and/or
FINRA, on the other hand, with respect to any term or provision of any Note or any other Transaction Document, (xiv) the shares of Common
Stock issuable pursuant the event requiring the satisfaction of the Equity Conditions are duly authorized and listed and eligible for
trading without restriction on an Eligible Market, and (xv) as of such time of determination a prime broker is available to the Holder
to clear shares of Common Stock.


 






    41


     


    

 


(x) “Equity
Conditions Failure” means that (i) on any day during the period commencing twenty (20) Trading Days prior to the applicable
Company Optional Redemption Notice Date through the applicable Company Optional Redemption Date or (ii) on any day during the period commencing
twenty (20) Trading Days prior to the applicable Installment Notice Date through the later of the applicable Installment Date and the
date on which the applicable shares of Common Stock are actually delivered to the Holder, the Equity Conditions have not been satisfied
(or waived in writing by the Holder).


 


(y) “Excluded
Securities” means (i) shares of Common Stock, restricted shares of Common Stock, restricted stock units or standard stock options
to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan
(as defined above), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such
options or vesting of restricted stock or restricted stock units) after the date hereof pursuant to this clause (i) do not, in the aggregate,
exceed more than 5% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any
stock options is not lowered, none of such stock options are amended to increase the number of shares issuable thereunder and none of
the terms or conditions of any such stock options are otherwise materially changed in any manner that adversely affects any of the Buyers;
(ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities or Options (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof,
provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security or Option is
made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security
that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such
Convertible Securities or Options (other than standard stock options to purchase Common Stock issued pursuant to an Approved Stock Plan
that are covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard stock options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares
issuable thereunder and none of the terms or conditions of any such Convertible Securities or Options (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed
in any manner that adversely affects any of the Buyers; (iii) any shares of Common Stock issued or issuable in connection with any Strategic
Acquisition Securities (as defined in the Securities Purchase Agreement); (iv) the shares of Common Stock issuable upon conversion of
the Notes or otherwise pursuant to the terms of the Notes; provided, that the terms of the Notes are not amended, modified or changed
on or after the Subscription Date (other than antidilution adjustments pursuant to the terms thereof in effect as of the Subscription
Date) and (v) any shares of Common Stock issued pursuant to a bona fide at-the-market offering, with gross proceeds in an aggregate amount
not to exceed $5 million in any given twelve month period (or, if less, the period commencing on the Issuance Date through, and including,
the last calendar day immediately prior to such date of determination).


 






    42


     


    

 


(z)
“Floor Price” means $0.54.


 


(aa) “Fundamental
Transaction” means (A) that the Company shall, directly or indirectly, including through subsidiaries, Affiliates or otherwise,
in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another
Subject Entity, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of
the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities,
or (iii) make, or allow one or more Subject Entities to make, or allow the Company to be subject to or have its Common Stock be subject
to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the holders of at least either
(x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common
Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities making or party to, such purchase, tender
or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Subject Entities making or party to,
or Affiliated with any Subject Entity making or party to, such purchase, tender or exchange offer, become collectively the beneficial
owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock
or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off
or scheme of arrangement) with one or more Subject Entities whereby all such Subject Entities, individually or in the aggregate, acquire,
either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated
as if any shares of Common Stock held by all the Subject Entities making or party to, or Affiliated with any Subject Entity making or
party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock
such that the Subject Entities become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50%
of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company shall,
directly or indirectly, including through subsidiaries, Affiliates or otherwise, in one or more related transactions, allow any Subject
Entity individually or the Subject Entities in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3
under the 1934 Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange,
reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off,
scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) at least
50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50% of the aggregate ordinary
voting power represented by issued and outstanding Common Stock not held by all such Subject Entities as of the date of this Note calculated
as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the aggregate ordinary
voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow
such Subject Entities to effect a statutory short form merger or other transaction requiring other stockholders of the Company to surrender
their shares of Common Stock without approval of the stockholders of the Company or (C) directly or indirectly, including through subsidiaries,
Affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument or transaction
structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed
and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this
definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or
transaction.


 






    43


     


    

 


(bb)  “GAAP”
means United States generally accepted accounting principles, consistently applied.


 


(cc) “Group”
means a “group” as that term is used in Section 13(d) of the 1934 Act and as defined in Rule 13d-5 thereunder.


 


(dd) “Indebtedness”
shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(ee) “Installment
Acceleration Price” means, with respect to a particular Acceleration Date, the lower of (i) the Conversion Price then in effect
and (ii) 90% of the Market Price as of such Acceleration Date.


 


(ff) “Installment
Acceleration Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant
to wire instructions delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the higher of
(I) the highest price that the Common Stock trades at on the Trading Day immediately preceding the relevant Acceleration Date and (II)
the applicable Installment Acceleration Floor Price and (B) the difference obtained by subtracting (I) the quotient obtained by dividing
(x) such portion of the Acceleration Amount that is to be converted into shares of Common Stock in such applicable Acceleration, by (y)
the applicable Installment Acceleration Floor Price from (II) the quotient obtained by dividing (x) such portion of the Acceleration Amount
that is to be converted into shares of Common Stock in such applicable Acceleration, by (y) the applicable Installment Acceleration Price.


 


(gg) “Installment
Amount” means the sum of (A) (i) with respect to any Installment Date other than the Maturity Date, the Installment Percentage
of the lesser of (x) the Holder Pro Rata Amount of $1,100,000 (or such other amount as the Holder and the Company shall mutually agree
in writing) and (y) the Principal amount then outstanding under this Note as of such Installment Date, and (ii) with respect to the Installment
Date that is the Maturity Date, 110% of the Principal amount then outstanding under this Note as of such Installment Date (in each case,
as any such Installment Amount may be reduced pursuant to the terms of this Note, whether upon conversion, redemption or Deferral), (B)
any Deferral Amount deferred pursuant to Section 8(d) and included in such Installment Amount in accordance therewith, (C) any Acceleration
Amount accelerated pursuant to Section 8(e) and included in such Installment Amount in accordance therewith and (D) in each case of clauses
(A) through (C) above, the sum of any accrued and unpaid Interest as of such Installment Date under this Note, if any, and accrued and
unpaid Late Charges, if any, under this Note as of such Installment Date (or such other amount as the Company and the Holder shall mutually
agree in writing). In the event the Holder shall sell or otherwise transfer any portion of this Note, the transferee shall be allocated
a pro rata portion of each unpaid Installment Amount hereunder. For the avoidance of doubt, any premium, if any, hereunder to the Principal
included in any Installment Amount shall, only upon the conversion in an Installment Conversion or Acceleration or redemption in an Installment
Redemption, as applicable, be recorded on the books and records of the Company as additional Interest that accrued upon such Installment
Conversion or Acceleration or Installment Redemption, as applicable, and was paid with respect to such Installment Conversions or Acceleration
or Installment Redemption, as applicable, hereunder upon the consummation of such Installment Conversion or Acceleration or Installment
Redemption hereunder and not as additional Principal being converted and/or redeemed hereunder at such time. For the avoidance of doubt,
solely for purpose of calculating the actual aggregate Principal converted or redeemed in any Installment Conversion and/or Installment
Redemption, as applicable, (and, as a consequence, the aggregate amount of Principal outstanding after giving effect to any such Installment
Conversion and/or Installment Redemption, as applicable) such calculations shall disregard any applicable Installment Percentage hereunder.


 






    44


     


    

 


(hh) “Installment
Conversion Floor Amount” means an amount in cash, to be delivered by wire transfer of immediately available funds pursuant to
wire instructions delivered to the Company by the Holder in writing, equal to the product obtained by multiplying (A) the higher of (I)
the highest price that the Common Stock trades at on the Trading Day immediately preceding the relevant Installment Date and (II) the
applicable Installment Conversion Price and (B) the difference obtained by subtracting (I) the number of shares of Common Stock delivered
(or to be delivered) to the Holder on the applicable Share Delivery Deadline with respect to such Installment Conversion from (II) the
quotient obtained by dividing (x) such portion of the Conversion Amount that is to be converted into shares of Common Stock in such applicable
Installment Conversion, by (y) the applicable Installment Conversion Price without giving effect to clause (x) of such definition.


 


(ii)
“Installment Conversion Price” means, with respect to a particular Installment Date, the lower of (i) the Conversion
Price then in effect and (ii) the greater of (x) the Floor Price then in effect and (y) 90% of the Market Price as of such Installment
Date.


 


(jj) “Installment
Date” means (i) January 1, 2022, (ii) thereafter, the first Trading Day of the calendar month immediately following the previous
Installment Date until the Maturity Date, and (iii) the Maturity Date.


 


(kk) “Installment
Percentage” means, as applicable, (i) if prior to April 1, 2022, 100% or (ii) if on or after April 1, 2022, 110%.


 


(ll) “Interest
Date” means, with respect to any given calendar month, the earlier of (i) the Business Day following the date of cure of the
applicable Event of Default with respect thereto, if any, and (ii) (x) if prior to the initial Installment Date or after the Maturity
Date, the first Trading Day of such calendar month or (y) if on or after the initial Installment Date, but on or prior to the Maturity
Date, such Installment Date, if any, in such calendar month.


 


(mm) “Market
Price” means, as of any time of determination, the lower of (x) the VWAP of the Common Stock as of the Trading Day immediately
preceding the applicable date of determination and (y) the quotient of (A) the sum of the VWAP of the Common Stock for each of the two
(2) Trading Days with the lowest VWAP of the Common Stock during the ten (10) consecutive Trading Day period ending and including the
Trading Day immediately prior to the applicable date of determination, divided by (B) two (2). All such determinations to be appropriately
adjusted for any stock split, stock dividend, stock combination or other similar transaction during any such measuring period.


 


(nn) “Maturity
Date” shall mean October 5, 2024; provided, however, the Maturity Date may be extended at the option of the Holder (i) in the
event that, and for so long as, an Event of Default shall have occurred and be continuing or any event shall have occurred and be continuing
that with the passage of time and the failure to cure would result in an Event of Default or (ii) through the date that is twenty (20)
Business Days after the consummation of a Fundamental Transaction in the event that a Fundamental Transaction is publicly announced or
a Change of Control Notice is delivered prior to the Maturity Date, provided further that if a Holder elects to convert some or all of
this Note pursuant to Section 3 hereof, and the Conversion Amount would be limited pursuant to Section 3(d) hereunder, the Maturity Date
shall automatically be extended until such time as such provision shall not limit the conversion of this Note.


 


(oo) “New
Subsidiary” means, as of any date of determination, any Person in which the Company after the Subscription Date, directly or
indirectly, (i) owns more than 50% of the outstanding capital stock, equity or similar interest of such Person or (ii) controls all or
substantially all of the business, operations or administration of such Person, and each of the foregoing, collectively, “New
Subsidiaries;” provided however, that New Subsidiary shall include solo sciences inc. upon the earlier to occur of (A) the Company
has exercised and closed (including payment in full to the shareholders of solo sciences inc.) on its option to acquire the remaining
shares of solo sciences inc. (the “Solo Option”) pursuant to Section 9.11 of the Stock Purchase Agreement dated November
25, 2019 by and between the Company, solo sciences inc. and the shareholders of solo sciences inc. (the “Solo Stock Purchase
Agreement”) or (B) the right of the shareholders of solo sciences inc. to repurchase up to 55% of the shares of common stock
of solo sciences inc. owned by the Company pursuant to Section 9.12 of the Solo Stock Purchase Agreement has expired unexercised.


 






    45


     


    

 


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


 


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


 


(rr) “Permitted
Indebtedness” means (i) Indebtedness evidenced by this Note and the Other Notes, (ii) Indebtedness set forth on Schedule 3(s)
to the Securities Purchase Agreement, as in effect as of the Subscription Date (excluding the SBA Loan), (iii) Indebtedness secured by
Permitted Liens or unsecured but as described in clauses (iv) and (v) of the definition of Permitted Liens, (iv) unsecured, subordinated
Indebtedness in an amount not to exceed $500,000 at any one time outstanding (in addition to any amounts incurred pursuant to clause (iii)),
(v) Indebtedness of the Company owing to and held by any Subsidiary or Indebtedness of a Subsidiary owing to the Company or another Subsidiary,
(vi) Indebtedness incurred by the Company or any Subsidiary in respect of workers’ compensation claims, health, disability or other
employee benefits, self-insurance obligations or property, casualty, liability or other insurance, and statutory, appeal, completion,
export, import, customs, revenue, performance, bid, surety, reclamation, remediation and similar bonds and completion guarantees (not
for borrowed money) provided in the ordinary course of business, (vii) Indebtedness arising from agreements of the Company or any Subsidiary
providing for indemnification, adjustment of purchase price, earn-out or similar obligations, in each case, incurred or assumed in connection
with the disposition of any business or assets of the Company or any business, assets or capital stock of any Subsidiary in each case,
not in excess of 25% of the actual cash purchase price of such business, assets or capital stock paid to the Company, (viii) Indebtedness
arising from the honoring by a bank or other financial institution of a check, draft or similar instrument (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness
is extinguished within five Business Days of incurrence, (ix) Indebtedness in the form of letters of credit or letters of guarantee and
reimbursement obligations in the ordinary course of business relating to letters of credit or letters of guarantee that are satisfied
within 30 days of being drawn and (x) prior to the SBA Loan Repayment Deadline (as defined in the Securities Purchase Agreement), the
SBA Loan.


 


(ss) “Permitted
Liens” means (i) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for
which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business
by operation of law with respect to a liability that is not yet due or delinquent, (iii) any Lien created by operation of law, such as
materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business with respect to
a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings, (iv) Liens (A) upon
or in any equipment acquired or held by the Company or any of its Subsidiaries to secure the purchase price of such equipment or Indebtedness
incurred solely for the purpose of financing the acquisition or lease of such equipment, or (B) existing on such equipment at the time
of its acquisition, provided that the Lien is confined solely to the property so acquired and improvements thereon, and the proceeds of
such equipment, in either case, with respect to Indebtedness in an aggregate amount not to exceed $100,000, (v) Liens incurred in
connection with the extension, renewal or refinancing of the Indebtedness secured by Liens of the type described in clause (iv) above,
provided that any extension, renewal or replacement Lien shall be limited to the property encumbered by the existing Lien and the principal
amount of the Indebtedness being extended, renewed or refinanced does not increase, (vi) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payments of custom duties in connection with the importation of goods, (vii) Liens arising from judgments,
decrees or attachments in circumstances not constituting an Event of Default under Section 4(a)(xii) and (viii) prior to the SBA Loan
Repayment Deadline, Liens as in effect as of the Subscription Date (without regard to any subsequent amendment, modification or waiver
thereof) arising under the SBA Loan solely with respect to the SBA Collateral (as defined in the Securities Purchase Agreement).


 






    46


     


    

 


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


 


(uu) “Price
ATM Failure” means, with respect to a particular date of determination, the VWAP of the Common Stock on any Trading Day during
the twenty (20) Trading Day period ending on the Trading Day immediately preceding such date of determination fails to exceed 120% of
the Conversion Price in effect on such date of determination. All such determinations to be appropriately adjusted for any stock splits,
stock dividends, stock combinations, recapitalizations or other similar transactions during any such measuring period.


 


(vv) “Price
Failure” means, with respect to a particular date of determination, the VWAP of the Common Stock on any Trading Day during the
twenty (20) Trading Day period ending on the Trading Day immediately preceding such date of determination fails to exceed $2.00 (as adjusted
for stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions occurring after the Subscription
Date). All such determinations to be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations
or other similar transactions during any such measuring period.


 


(ww) “Principal
Market” means the Nasdaq Capital Market.


 


(xx) “Redemption
Notices” means, collectively, the Event of Default Redemption Notices, the Company Optional Redemption Notices, the Installment
Notices with respect to any Installment Redemption and the Change of Control Redemption Notices, and each of the foregoing, individually,
a “Redemption Notice.”


 


(yy) “Redemption
Premium” means 115%.


 


(zz) “Redemption
Prices” means, collectively, Event of Default Redemption Prices, the Change of Control Redemption Prices, the Company Optional
Redemption Prices and the Installment Redemption Prices, and each of the foregoing, individually, a “Redemption Price.”


 






    47


     


    

 


(aaa) “Registration
Rights Agreement” means that certain registration rights agreement, dated as of the Closing Date, by and among the Company and
the initial holders of the Notes relating to, among other things, the registration of the resale of the Common Stock issuable upon conversion
of the Notes or otherwise pursuant to the terms of the Notes, as may be amended from time to time.


 


(bbb)  “SEC”
means the United States Securities and Exchange Commission or the successor thereto.


 


(ccc) “Securities
Purchase Agreement” means that certain securities purchase agreement, dated as of the Subscription Date, by and among the Company
and the initial holders of the Notes pursuant to which the Company issued the Notes, as may be amended from time to time.


 


(ddd) “Security
Agreement” shall have the meaning as set forth in the Securities Purchase Agreement.


 


(eee) “Subscription
Date” means October 5, 2021.


 


(fff) “Subsidiaries”
means, as of any date of determination, collectively, all Current Subsidiaries and all New Subsidiaries, and each of the foregoing, individually,
a “Subsidiary.”


 


(ggg) “Subject
Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person, Persons or Group.


 


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


 


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


 






    48


     


    

 


(jjj) “Volume
Failure” means, with respect to a particular date of determination, the aggregate daily dollar trading volume (as reported on
Bloomberg) of the Common Stock on the Principal Market on any Trading Day during the twenty (20) Trading Day period ending on the Trading
Day immediately preceding such date of determination is less than $500,000.


 


(kkk) “VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market
on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) or, if the foregoing does
not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for
such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg,
or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing
bid price and the lowest closing ask price of any of the market makers for such security as reported in the “pink sheets”
by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security on such date on any of the foregoing
bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If
the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance
with the procedures in Section 24. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock
combination, recapitalization or other similar transaction during such period.


 


33. DISCLOSURE.
Upon delivery by the Company to the Holder (or receipt by the Company from the Holder) of any notice in accordance with the terms of this
Note, unless the Company has in good faith determined that the matters relating to such notice do not constitute material, non-public
information relating to the Company or any of its Subsidiaries, the Company shall on or prior to 9:00 am, New York city time on the Business
Day immediately following such notice delivery date, publicly disclose such material, non-public information on a Current Report on Form
8-K or otherwise. In the event that the Company believes that a notice contains material, non-public information relating to the Company
or any of its Subsidiaries, the Company so shall indicate to the Holder explicitly in writing in such notice (or immediately upon receipt
of notice from the Holder, as applicable), and in the absence of any such written indication in such notice (or notification from the
Company immediately upon receipt of notice from the Holder), the Holder shall be entitled to presume that information contained in the
notice does not constitute material, non-public information relating to the Company or any of its Subsidiaries. Nothing contained in this
Section 33 shall limit any obligations of the Company, or any rights of the Holder, under Section 4(i) of the Securities Purchase Agreement.


 


34. ABSENCE
OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company
and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain
from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an
officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed,
written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company, may
possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information
to any third party.


 


[signature page follows]


 




    49


     


    

 


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





 


	 	AKERNA CORP.






	 	 	 
	 	By:	 
	 		Name:
	 		Title:


 


Senior Convertible Note - Signature Page


 




    


     


    

 


EXHIBIT
I




 


AKERNA CORP.

CONVERSION NOTICE


 


Reference is made to the Senior
Secured Convertible Note (the “Note”) issued to the undersigned by Akerna Corp., a Delaware corporation (the “Company”).
In accordance with and pursuant to the Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of
the Note indicated below into shares of Common Stock, $0.0001 par value per share (the “Common Stock”), of the Company,
as of the date specified below. Capitalized terms not defined herein shall have the meaning as set forth in the Note.


 


	Date of Conversion:	 	 



 


	Aggregate Principal to be converted (including any Installment Percentage, if applicable):	 	 
	 	 	 
	Aggregate Principal to be converted (without regard to any Installment Percentage, if applicable):	 	 
	 	 	 
	Aggregate accrued and unpaid Interest and accrued and unpaid Late Charges with respect to such portion of the Aggregate Principal and such Aggregate Interest to be converted:	 	 
	 	 	 
	AGGREGATE CONVERSION AMOUNT

TO BE CONVERTED (INCLUDING INSTALLMENT PERCENTAGE, IF APPLICABLE):	 	 






 


	Please confirm the following information:
	 
	Conversion Price:	 	 
	 	 	 
	Number of shares of Common Stock to be issued:	 	 
	 	 	 
	

    Installment Amount(s) to be reduced (and corresponding
    Installment Date(s)) and amount of reduction:
	 	 






 


☐ If this Conversion Notice
is being delivered with respect to an Alternate Conversion, check here if Holder is electing to use the following Alternate
Conversion Price:____________


 


☐ If this Conversion Notice
is being delivered with respect to an Acceleration, check here if Holder is electing to use _________ as the Installment
Acceleration Price related to the following Installment Date:____________ and applying an Installment Percentage of _____ to the
Conversion Amount above.


 






    


     


    

 


Please issue the Common Stock into which the Note
is being converted to Holder, or for its benefit, as follows:


 


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





 


	 	Issue to:	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 	☐ Check here if requesting delivery
    by Deposit/Withdrawal at Custodian as follows:
	 	 
	 	DTC Participant:	 	 
	 	DTC Number:	 	 
	 	Account Number:	 	 












 


Date: _____________ __,    



 


	Name of Registered Holder	 
	 	 
	By: 	 	 
	 	Name:	 
	 	Title:	 
	 	 	 



 


	 	Tax ID:	 	 








 


E-mail Address:


 





    


     


    

 


Exhibit II


 


ACKNOWLEDGMENT


 


The Company hereby (a) acknowledges
this Conversion Notice, (b) certifies that the above indicated number of shares of Common Stock [are][are not] eligible to be resold by
the Holder either (i) pursuant to Rule 144 (subject to the Holder’s execution and delivery to the Company of a customary 144 representation
letter) or (ii) an effective and available registration statement and (c) hereby directs _________________ to issue the above indicated
number of shares of Common Stock in accordance with the Transfer Agent Instructions dated _____________, 20__ from the Company and acknowledged
and agreed to by ________________________.





 


	 	AKERNA CORP.
	 	 	 
	 	By:	 
	 		Name:
	 		Title: