Exhibit 10.1


 


NOTE PURCHASE AGREEMENT


 


This Note Purchase Agreement
(this “Agreement”) is made as of February 18, 2022, by and among QPhoton, Inc., a Delaware corporation (the
“Company”), and Quantum Computing Inc., a Delaware corporation (the “Investor”, and
together with the Company, the “Parties”).


 


The Investor is willing to
advance funds to the Company in exchange for the issuance to it of certain promissory notes evidencing the Company’s obligation
to repay the Investor’s loans of the advanced funds, all as provided in this Agreement.


 


The Parties have entered into
an exclusivity agreement, dated February 9, 2022 (the “Exclusivity Agreement”) providing for certain extensions of the Initial
Period (as defined in the Exclusivity Agreement) upon the financing transactions under this Agreement.


 


NOW THEREFORE, the parties
hereby agree as follows.


 


1. PURCHASE
AND SALE OF NOTE.


 


1.1 Note
Purchase. Subject to the terms and conditions of this Agreement, the Company agrees to sell to the Investor, and the Investor
agrees to purchase from the Company, two (2) Promissory Notes in the form attached to this Agreement as Exhibit A (each a
“Note”, and together “Notes”), each with a principal amount equal to $1,250,000 and
together with an aggregate principal amount equal to $2,500,000 on the terms and subject to the conditions set forth herein. The following
are collectively referred to as the “Financing Documents”: (a) this Agreement, (b) the Notes and (c) any document
entered into or executed in connection with, or for the purpose of amending, any other Financing Document described in this sentence.
Capitalized terms used but not defined herein shall have the meanings set forth in the Note.


 


2. CLOSINGS.


 


2.1 Initial
Closing. The initial closing for the purchase and sale of the first Note with a principal amount equal to $1,250,000 shall occur
on or about the date hereof via the remote exchange of documents (“Initial Closing”). The First Renewal Period
(as defined in the Exclusivity Agreement) commences upon the Initial Closing. Promptly following the Initial Closing, the Parties will
exercise commercially reasonable efforts to discuss and prepare a mutually agreeable operating budget for the current calendar year of
the Company (the “Second Tranche Budget”).


 


2.2 Second
Closing. The closing of the purchase and sale of the second Note with a principal amount equal to $1,250,000 shall occur via the
remote exchange of documents (the “Second Closing” together with the Initial Closing, the “Closings”
and each a “Closing”) upon the request of the Company, provided that prior to such request either (i) the Parties
mutually approve the Second Tranche Budget; or (ii) the Investor elects, by written notice to the Company, to extend the exclusivity period
under the Exclusivity Agreement by an additional thirty (30) days, in which case the additional exclusivity period shall commence upon
remittance of the additional $1,250,000 to the Company and delivery by the Company to Investor of an executed second Note. The Second
Renewal Period (as defined in the Exclusivity Agreement) commences upon the Second Closing.


 






     


     


    

 


3. COVENANTS
OF THE COMPANY AND THE INVESTOR.


 


3.1 Most-Favored
Nation. Until the Notes have terminated in accordance with their terms, in the event that the Company issues any non-convertible
debt of the Company after the date hereof which have rights or privileges that may reasonably be considered to be more favorable to the
holders thereof than the terms of the Notes issued hereunder (“Favorable Rights”), the Company shall provide
prompt notice to the Investor of such Favorable Rights and, at the election of the Investor, the Notes shall be amended and restated to
include the relevant Favorable Rights effective upon issuance of the Favorable Rights, which amendments or restatements will be prepared
by the Company


 


4. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY. The Company hereby represents and warrants to the Investor that, except as
set forth on the Disclosure Schedule attached as Exhibit B to this Agreement (the “Disclosure Schedule”),
which exceptions shall be deemed to be part of the representations and warranties made hereunder, the statements in the following paragraphs
of this Section 4 are all true and complete as of each Closing, except as otherwise indicated.


 


4.1 Organization,
Good Standing and Qualification. The Company has been duly incorporated and organized, and is validly existing in good standing,
under the laws of the State of Delaware. The Company’s predecessor was formed in New Jersey as a limited liability company in January
23, 2020 and was converted into a Delaware corporation on March 1, 2021 (the “Incorporation Date”). The Company
has the corporate power and authority to own and operate its properties and assets and to carry on its business as currently conducted
and as presently proposed to be conducted. The Company is duly qualified to transact business and is in good standing in each jurisdiction
in which the failure to so qualify would have a material adverse effect on its business or properties.


 


4.2 Capitalization.
The authorized capital of the Company consists, as of the date immediately prior to the Initial Closing exclusively of:


 


(a) 10,000,000
shares of common stock, $.0001 par value per share (the “Common Stock”) have been authorized in the Company’s
Certificate of Incorporation (“Charter”) in effect as of immediately prior to the Closing, 6,172,840 shares
of which are issued and outstanding. All of the outstanding shares of Common Stock have been duly authorized, are fully paid and non-assessable
and were issued in compliance with all applicable federal and state securities laws. The Company’s current capitalization is set
forth on Section 4.2(a) of the Disclosure Schedule.


 


(b) Except
for the issued and outstanding shares of Common Stock, the Financing Documents or as otherwise set forth in Section 4.2(b) of the
Disclosure Schedule, there are no (x) options, warrants, convertible securities or other rights or contracts of any character relating
to the equity interests of the Company or obligating the Company to issue or sell, or otherwise dispose of any equity interests of the
Company; or (y) contractual obligations of the Company to repurchase, redeem or otherwise acquire any equity interests in the Company
or to make any investment (in the form of a loan, capital contribution or otherwise) in any other entity. None of the outstanding shares
of Common Stock of the Company have been issued in violation of any right of first refusal, preemptive, subscription or similar rights
under any law, the Charter, the Company’s bylaws (the “Bylaws”), or any contract to which the Company
is subject, bound or a party. There are no voting trusts or other commitments to which the Company is a party with respect to the voting
of any equity interests. The Company does not own or hold the right to acquire any equity interests in any entity or have any direct or
indirect equity or ownership interest in any entity.


 






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4.3 Due
Authorization. All corporate action on the part of the Board and Stockholders necessary for the authorization, execution, delivery
of, and the performance of all obligations of the Company under, the Financing Documents has been taken or will be taken prior to the
applicable Closing. This Agreement constitutes, and the other Financing Documents that constitute agreements of the Company, when executed
and delivered by the Company, will constitute, valid and legally binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as may be limited by (a) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of creditors’ rights generally and (b) the effect of rules
of law governing the availability of equitable remedies.


 


4.4 Corporate
Power. The Company has the corporate power and authority to execute and deliver the Financing Documents to which it is a signatory,
to issue to the Investor the Notes to be purchased by the Investor hereunder and to carry out and perform all its obligations under the
Financing Documents.


 


4.5 Compliance
with Other Instruments. Neither the authorization, execution and delivery of this Agreement, nor the issuance and delivery of
the Notes, will (i) constitute or result in a violation of any material law or regulation applicable to the Company or any of its assets
or properties, (ii) conflict with or violate any term or provision of the Charter or Bylaws, (iii) conflict with or violate any judgment,
order writ, decree, statute, rule or regulation applicable to the Company, (iv) conflict with, violate, or constitute or result in a breach
(with or without due notice or lapse of time or both) of any mortgage, indenture agreement, contract or instrument by which it is bound
or to which its properties or assets are subject, or (v) result in the creation or imposition of any material lien upon any property,
asset or revenue of the Company or any suspension, revocation, impairment, forfeiture, or non-renewal of any material permit, license,
authorization or approval applicable to the Company, its business or operations, or any of its assets or properties.


 


4.6 Valid
Issuance. The issuance, sale, and delivery of the Notes to the Investor have been duly authorized by all necessary corporate action
on the part of the Company.


 


4.7 Securities
Laws. Based in part on the representations made by the Investor in Section 5 hereof, the offer and sale of the Notes solely
to the Investor in accordance with this Agreement are exempt from the registration and prospectus delivery requirements of the U.S. Securities
Act of 1933, as amended (the “Securities Act”), and the securities registration and qualification requirements
of the currently effective provisions of the securities laws of the states in which the Investor is resident.


 


4.7  Governmental
Consents and Filings. Assuming the accuracy of the representations made by the Investor in Section 5 of this Agreement, no consent,
approval, order or authorization of, or registration, qualification, designation, declaration or filing with, any federal, state or local
governmental authority is required on the part of the Company in connection with the consummation of the transactions contemplated by
this Agreement.


 


4.8 Litigation.
There is no claim, action, suit, proceeding, arbitration, complaint, charge or investigation pending or to the Company’s Knowledge
(defined below), currently threatened in writing (i) against the Company or to which the Company will become a party; or (ii) to the Company’s
Knowledge, that questions the validity of this Agreement or the right of the Company to enter into this Agreement, or to consummate the
transactions contemplated by this Agreement. The Company is not a party and is not named as subject to the provisions of any order, writ,
injunction, judgment or decree of any court or government agency or instrumentality (in the case of officers or directors, such as would
affect the Company). The Company shall be deemed to have “Knowledge” of a particular fact or other matter if
any of its directors or executive officers and their direct reports have actual awareness of the fact or matter.


 






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4.9 Financial
Information. The Company has provided the Investor with complete and correct copies of all of the financial information it has
in its possession. Except as set forth on Section 4.9 of the Disclosure Schedule, the Company has no liability or obligation, absolute
or contingent (individually or in the aggregate), except (i) obligations and liabilities incurred after the Incorporation Date in the
ordinary course of business that are not material, individually or in the aggregate, and (ii) obligations under contracts made in the
ordinary course of business that would not be required to be reflected in financial statements prepared in accordance with U.S. generally
accepted accounting principles, consistently applied. For the avoidance of doubt, the Company does currently not have any financial statements.


 


4.10 Absence
of Certain Changes or Events. Since the Incorporation Date: (a) the Company has conducted its businesses in all material respects
only in the ordinary course of business except in connection with the Financing Documents and as set forth on Section 4.10 of the
Disclosure Schedule, (b) there has not occurred, and there is not currently existing any circumstance, event, change, development, or
occurrence (including, without limitation, any damage, destruction, or other casualty loss (whether or not covered by insurance)) which
has had, or that is reasonably likely to a material adverse effect on the Company, and (c) there has not been any material change in the
accounting methods, principles or practices of the Company.


 


4.11 Tax
Matters. The Company has duly and timely filed or caused to be filed in a timely manner (within applicable extension periods)
all material Tax Returns (defined below) and forms required to be filed by it and no material penalties or other charges are or will become
due with respect to any of Tax Returns as the result of the late filing thereof. The Company has paid all material Taxes (defined below)
due in connection with any of the Company’s Tax Returns (without regard to whether or not such Taxes are shown as due on such Tax
Returns), as well as all other material Taxes which have become due and payable, including, without limitation, all Taxes which the Company
is obligated to withhold from amounts owing to employees, creditors, and third parties. There is no federal, state, local or foreign action,
suit, proceeding, audit, investigation, or claim pending or, to the Company’s Knowledge, threatened in respect of any material Taxes
for which the Company is or may become liable, nor has any deficiency or claim for any such Taxes been proposed, asserted or, to the Company’s
Knowledge, threatened by any Taxing authority. The Company has not consented to any waivers or extensions of any statute of limitations
with respect to any taxable year of the Company. Neither the Company nor any of its present or former stockholders has ever filed an election
pursuant to Section 1362 of the Internal Revenue Code of 1986, that the Company be taxed as an S corporation. “Tax”
means any tax (including any income tax, franchise tax, capital gains tax, value-added tax, sales tax, excise tax, property tax, escheat
tax, use tax, payroll tax, gift tax or estate tax), levy, duty (including any customs duty), and any related charge or amount (including
any fine, penalty, interest or addition to tax), imposed, assessed or collected by or under the authority of any governmental authority
or payable pursuant to any tax-sharing agreement or any other contract relating to the sharing or payment of any such tax, levy, duty,
deficiency or fee. “Tax Return” means any return (including any information return), report, statement, schedule,
notice, form or other document or information filed with or submitted to, or required to be filed with or submitted to, any governmental
authority in connection with the determination, assessment, collection or payment of any Tax.


 


4.12 Intellectual
Property. The Company owns, or has sufficient license to use, all inventions, improvements, patents, patent applications, trademarks,
trademark applications, service marks, service mark applications, tradenames, copyrights, trade secrets, domain names, mask works, information
and proprietary rights and processes, similar or other intellectual property rights (“Company Intellectual Property”)
necessary for the conduct of the Company’s operations as currently conducted. Section 4.12(i) of the Disclosure Schedule
sets forth a correct and complete list of all (a) letters patent, patent applications, trademark and service mark registrations and applications,
copyright registrations and applications, and domain names and (b) all material utility models, utility model applications, design registrations
and applications, trade names, brand names, logos, unregistered trademarks or service marks, in all cases both domestic and foreign, included
in the Company Intellectual Property. No product or service marketed or sold (or proposed to be marketed or sold) by the Company knowingly
violates or will knowingly violate any license or infringes or, to the Company’s Knowledge, will infringe any intellectual property
rights of any other party. Other than with respect to end user license agreements, commercially available works of authorship or software
products under standard end-user object code license agreements or as listed in Section 4.12(ii) of the Disclosure Schedule, there
are no outstanding options, licenses, agreements, claims, encumbrances or shared ownership interests of any kind relating to the Company
Intellectual Property nor is the Company bound by, or a party to, any options, licenses or agreements of any kind with respect to the
Intellectual Property of any other individual or entity. The Company has not knowingly received in writing any communications alleging
that the Company has violated or, by conducting its business, would violate any of the patents, trademarks, service marks, tradenames,
copyrights, trade secrets, mask works or other proprietary rights or processes of any other individual or entity. The Company has obtained
and possesses valid licenses to use all of the software programs present on the computers and other software- enabled electronic devices
that it owns or leases in connection with the Company’s business.


 






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4.13 Employee
Matters.


 


(a) As
of the date of this Agreement, the Company employs three full time interns and one part time employee. The Company is not aware that any
officer or group of employees intends to terminate his, her or their employment with the Company.


 


(b) The
Company is not a party to or bound by any currently effective written employment contract and the employment of each employee or consultant
of the Company is terminable at will. To the Knowledge of the Company, no employee of the Company or any consultant with whom the Company
has contracted is a party to or bound by any contract or other commitment (including, without limitation, any employment contract, proprietary
information agreement or any other agreement) or subject to any judgment, decree, order of any governmental entity or any other restrictions
that would materially interfere with such individual’s ability to be employed by, or to contract with, the Company or to promote
the interest of the Company or that would conflict with the business the Company; and to the Company’s Knowledge the continued employment
by the Company of its present employees, and the performance of the Company’s contracts with its independent contractors, will not
result in any such violation. The Company has not received any notice in writing alleging that any such violation has occurred.


 


(c) Each
of the current and former employees, officers, consultants, and independent contractors of the Company has entered into a written Employment,
Confidential Information, Invention Assignment and Arbitration Agreement, the form of which has been provided to the Investor (“Invention
Assignment Agreement”). No current and former employees, officers, consultants, or independent contractors has excluded
any works or inventions from their respective Invention Assignment Agreement and, to the Company’s Knowledge, none of them is in
violation of their respective Invention Assignment Agreements.


 


(d) The
Company has no collective bargaining agreements with any of its employees. There is no labor union organizing activity pending or, to
the Company’s Knowledge, threatened with respect to the Company.


 


4.14 Related-Party
Transactions.


 


(a) The
Company is not indebted, directly or indirectly, to any of its directors, officers, employees or to their Immediate Family Members (as
defined below), or to any affiliate of the foregoing (other than amounts payable in connection with advances of expenses incurred in the
ordinary course of business or for employee benefits made available to all employees). None of the directors, officers, employees or stockholders
of the Company or the Immediate Family Members of any such individual are indebted, directly or indirectly, to the Company. The term “Immediate
Family Member” means an individual’s spouse, parents, children, siblings, mothers and fathers-in-law, sons and daughters-in-law,
and brothers and sisters-in-law.


 


(b) There
are no agreements, understandings or proposed transactions between the Company and any of its directors, officers, employees, consultants,
or Immediate Family Member of such individual, or any affiliate thereof.


 


5. REPRESENTATIONS,
WARRANTIES AND CERTAIN AGREEMENTS OF INVESTOR. The Investor hereby represents
and warrants to, and agrees with the Company as follows.


 


5.1 Authorization.
This Agreement constitutes, and the other Financing Documents which constitute agreements of the Investor when executed and delivered
by the Investor will constitute, the Investor’s valid and legally binding obligations, enforceable against the Investor in accordance
with its terms, except as may be limited by (a) applicable bankruptcy, insolvency, reorganization or other laws of general application
relating to or affecting the enforcement of creditors’ rights generally and (b) the effect of rules of law governing the availability
of equitable remedies. The Investor represents and warrants to the Company that the Investor has full power and authority to enter into
this Agreement.


 






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5.2 Securities
Law Compliance. The Investor has been advised that the Notes have not been registered under the Securities Act or any state securities
laws and, therefore, cannot be resold unless they are registered under the Securities Act and applicable state securities laws or unless
an exemption from such registration requirements is available. The Investor is aware that the Company is under no obligation to effect
any such registration with respect to the Notes or to file for or comply with any exemption from registration.


 


5.3 Purchase
for Own Account. The Notes will be acquired for investment for the Investor’s own account, not as a nominee or agent, and
not with a view to the public resale or distribution thereof within the meaning of the Securities Act, and the Investor has no present
intention of selling, granting any participation in, or otherwise distributing the same.


 


5.4 No
Solicitation. At no time was the Investor presented with or solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection with the offer, sale and purchase of the Notes.


 


5.5 Disclosure
of Information. The Investor has received or has had access to all the information the Investor considers necessary or appropriate
to make an informed investment decision with respect to the Notes. The Investor further has had an opportunity to ask questions and receive
answers from the Company regarding the terms and conditions of the offering of the Notes and to obtain additional information (to the
extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify any information
furnished to the Investor or to which the Investor had access. The foregoing, however, does not in any way limit or modify the representations
and warranties made by the Company in Section 4.


 


5.6 Investment
Experience. The Investor understands that the purchase of the Notes involves substantial risk. The Investor has experience as
an investor in securities of companies in the development stage and acknowledges that the Investor is able to fend for itself, can bear
the economic risk of the Investor’s investment in the Notes and has such knowledge and experience in financial or business matters
that the Investor is capable of evaluating the merits and risks of this investment in the Notes and protecting the Investor’s own
interests in connection with this investment in the Notes.


 


5.7 Preexisting
Relationship. The Investor has a preexisting personal or business relationship with the Company and certain of its officers, directors
or controlling persons of a nature and duration that enables the Investor to be aware of the character, business acumen and financial
circumstances of such persons.


 


5.8 No
“Bad Actor” Disqualification Events. At no time was (i) the Investor, nor (ii) any beneficial owner of the Company’s
voting equity securities (in accordance with Rule 506(d) of the Securities Act) held by the Investor is subject to any of the “bad
actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act.


 


5.9 Accredited
Investor Status. The Investor is familiar with the definition of, and qualifies as, an “accredited investor within the meaning
of Regulation D promulgated under the Securities Act.


 


5.10 Restricted
Securities. The Investor understands that the Notes are characterized as “restricted securities” under the Securities
Act and Rule 144 promulgated thereunder (“Rule 144”) since they are being acquired from the Company
in a transaction not involving a public offering, and that under the Securities Act and applicable regulations thereunder the Notes may
be resold without registration under the Securities Act only in certain limited circumstances. The Investor further understands that the
Company is under no obligation to register the Notes, and the Company has no present plans to do so. Furthermore, the Investor is familiar
with Rule 144, as presently in effect, and understands the limitations imposed thereby and by the Securities Act on resale of the
Notes without such registration. The Investor understands that, whether or not the Notes may be resold in the future without registration
under the Securities Act, no public market now exists for any of the Notes and that it is uncertain whether a public market will ever
exist for the Notes.


 






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5.11 Further
Limitations on Disposition. Without in any way limiting the representations set forth above, the Investor further agrees not to
make any disposition of all or any portion of the Notes unless and until:


 


(a) there
is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in
accordance with such effective registration statement; or


 


(b) the
Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with a statement of the circumstances
surrounding the proposed disposition and, at the expense of the Investor or its transferee, with an opinion of counsel reasonably satisfactory
in form and substance to the Company that such disposition will not require registration of such Notes under the Securities Act.


 


Notwithstanding the provisions
of clauses (a) and (b) of this Section 5.11, no such registration statement or opinion of counsel shall be required for any transfer:
(i) of any Notes in compliance with Rule 144 or Rule 144A promulgated under the Securities Act when the Company is promptly
provided evidence of such compliance; (ii) of any Notes for no consideration by the Investor that is a partnership or a corporation
to (A) a partner of such partnership or stockholder of such corporation, (B) an affiliate of such partnership or corporation,
(C) a retired partner of such partnership who retires after the date hereof, (D) the estate of any deceased partner of such
partnership or deceased stockholder of such corporation; or (iii) by gift, will or intestate succession by the Investor to his or
her spouse or lineal descendants or ancestors or any trust for any of the foregoing; provided that in each of the foregoing
cases the transferee agrees in writing to be subject to the terms of this Section 5 to the same extent as if the transferee had been
an original Investor hereunder.


 


5.1 “Market
Stand-Off” Agreement. The Note contains a market standoff provision prohibiting the Investor from selling the Company’s
securities subsequent to certain registered offerings of the Company’s capital stock. The market stand-off agreements are binding
upon the Investor and its transferees.


 


6. CONDITIONS
TO CLOSING.


 


6.1 Conditions
to Investor’s Obligations. The obligations of the Investor under Section 2 of this Agreement are subject to the fulfillment
or waiver, on or before each Closing, of each of the following conditions by the Company:


 


(a) Each
of the representations and warranties of the Company contained in Section 4 shall be true and complete in all material respects on
and as of the applicable Closing with the same effect as though such representations and warranties had been made on and as of the date
of such Closing;


 


(b) The
Company shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required
to be performed or complied with by it on or before the applicable Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein; and


 


(c) The
Company shall have executed and delivered to the Investor a Note, in the form attached hereto as Exhibit A, evidencing the
Company’s indebtedness to the Investor in the amount and on the terms and conditions set forth in Section 2.


 






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6.2 Condition
to Company’s Obligations. The obligations of the Company to the Investor under this Agreement are subject to the fulfillment
or waiver on or before each Closing of the following conditions by the Investor:


 


(a) Each
of the representations and warranties of the Investor contained in Section 5 shall be true and complete on the date of the applicable
Closing with the same effect as though such representations and warranties had been made on and as of such Closing;


 


(b) The
Investor shall have delivered to the Company the amounts and on the terms and conditions set forth in Section 2 at each applicable Closing
in respect of the Notes being purchased by the Investor;


 


(c) The
Investor shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required
to be performed or complied with by it on or before the applicable Closing and shall have obtained all approvals, consents and qualifications
necessary to complete the purchase and sale described herein; and


 


7. GENERAL
PROVISIONS.


 


7.1 Survival
of Warranties. Except as otherwise set forth herein and in the case of fraud or willful misconduct, the representations, warranties
and covenants of the Company and the Investor contained in or made pursuant to this Agreement shall survive for 18 months following the
execution and delivery of this Agreement and the applicable Closing and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investor or the Company, as the case may be. Notwithstanding any of the foregoing to the contrary,
the following fundamental representations, warranties and covenants (“Fundamental Representations”) shall survive for
the period of the applicable statute of limitations following each Closing for such Fundamental Representations: Section 4.1 (Organization,
Good Standing and Qualification); Section 4.2 (Capitalization); Section 4.3 (Due Authorization); Section 4.4 (Corporate Power); and Section
4.6 (Valid Issuance).


 


7.2 Successors
and Assigns. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors
and assigns of the parties provided, however, that nothing in this Section 7.2 shall permit the Investor to
transfer or assign any of the Notes acquired under this Agreement except as provided in Section 5.


 


7.3 Governing
Law; Dispute Resolution.


 


(a) This
Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might
otherwise govern under applicable principles of conflicts of law.


 


(b) The
parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the Delaware Chancery Court for the purpose of any suit,
action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding
arising out of or based upon this Agreement except in the Delaware Chancery Court, and (c) hereby waive, and agree not to assert, by way
of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction
of the above-named court, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought
in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof
may not be enforced in or by such court.  Each party will bear its own costs in respect of any disputes arising under this Agreement. 
Each of the parties to this Agreement consents to personal jurisdiction for any equitable action sought in the Delaware Chancery Court.


 


7.4 Counterparts;
Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile, or by email
in portable document format (.pdf) and delivery of the signature page by such method will be deemed to have the same effect as if the
original signature had been delivered to the other parties.


 


7.5 Headings;
Interpretation. The headings and captions used in this Agreement are used only for convenience and are not to be considered in
construing or interpreting this Agreement. In this Agreement, (a) the meaning of defined terms shall be equally applicable to both
the singular and plural forms of the terms defined; (b) the captions and headings are used only for convenience and are not to be
considered in construing or interpreting this Agreement and (c) unless otherwise expressly indicated in any particular instance, the words
“including,” “includes” and “include” shall be deemed to be followed by the words “without limitation”.
All references in this Agreement to sections, paragraphs, exhibits and schedules shall, unless otherwise provided, refer to sections and
paragraphs hereof and exhibits and schedules attached hereto, all of which exhibits and schedules are incorporated herein by this reference.


 






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7.6 Notices.
Unless otherwise provided herein, any notice required or permitted under this Agreement shall be given in writing and shall be deemed
effectively given (a) at the time of personal delivery, if delivered in person; (b) one (1) business day after deposit with
an express overnight courier for United States deliveries, or three (3) business days after deposit with an international express air
courier for deliveries outside of the United States, in each case with proof of delivery from the courier requested; or (c) four
(4) business days after deposit in the United States mail by certified mail (return receipt requested) for United States deliveries, when
addressed to the Investor at 215 Depot Court, Suite 215, Leesburg, VA 20175 or at rlisk@quantumcomputinginc.com and when addressed to
the Company, to 78 John Miller Way Suite 401, Kearny, NJ 07032, or at such other address as any party may designate by giving ten (10)
days’ advance written notice to all other parties in accordance with the provisions of this Section. For purposes of this Section
7.6, a “business day” means a weekday on which banks are open for general banking business in New York, New
York.


 


7.7 No
Finder’s Fees. Each party represents that it neither is nor will be obligated for any finder’s or broker’s fee
or commission in connection with the transactions contemplated by this Agreement. The Investor agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature of a finder’s or broker’s fee (and any asserted
liability) for which the Investor or any of its directors, officers, partners, members, employees or representatives is responsible. The
Company agrees to indemnify and hold harmless the Investor from any liability for any commission or compensation in the nature of a finder’s
or broker’s fee (and any asserted liability) for which the Company or any of its officers, employees or representatives is responsible.


 


7.8 Confidentiality.
The Investor agrees that the Investor will keep confidential and will not disclose, divulge, or use for any purpose (other than to monitor
its investment in the Company) any confidential information obtained from the Company, unless such confidential information (a) is known
or becomes known to the public in general (other than as a result of a breach of this Section 7.8 by the Investor), (b) is or has been
independently developed or conceived by the Investor without use of the Company’s confidential information, (c) is or has been made
known or disclosed to the Investor by a third party without a breach of any obligation of confidentiality such third party may have to
the Company; provided, however, that the Investor may disclose confidential information (i) to its attorneys, accountants, consultants
and other professionals to the extent necessary to obtain their services in connection with monitoring its investment in the Company;
or (ii) as may otherwise be required by law, provided that the Investor promptly notifies the Company of such disclosure and takes reasonable
steps to minimize the extent of any such required disclosure.


 


7.9 Amendments
and Waivers. Any term of this Agreement and the Notes may be amended and the observance of any term of this Agreement and the
Notes may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent
of the Company and the Investor.


 


7.10 Severability.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable
in accordance with its terms.


 


7.11 Entire Agreement.
This Agreement, together with all exhibits and schedules hereto, and the other Financing Documents, constitute the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof and supersede any and all prior negotiations, correspondence,
agreements, understandings duties or obligations between any of the parties with respect to the subject matter hereof.


 


7.12 Further
Assurances. From and after the date of this Agreement, upon the request of the Investor or the Company, the Company and the Investor
shall execute and deliver such instruments, documents or other writings as may be reasonably necessary or desirable to confirm and carry
out and to effectuate fully the intent and purposes of this Agreement.


 


7.13 Costs,
Expenses. All parties shall pay all of such parties’ fees and out of pocket expenses that such party incurs in connection
with the transactions described here.


 


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    -9-


     


    

 


IN WITNESS WHEREOF,
the parties hereto have executed this Note Purchase Agreement as of the date first written above.


 


	 	THE COMPANY:
	 	 
	 	QPHOTON INC.


 


	 	By:	/s/ Yuping Huangc
	 	Name:	Yuping Huang
	 	Title:	Chief Executive Officer


 


[Signature
Page for the Note Purchase Agreement]


 




     


     


    

 


IN WITNESS WHEREOF,
the parties hereto have executed this Note Purchase Agreement as of the date first written above.


 


	 	
    INVESTOR:

     

    QUANTUM COMPUTING INC.



 


	 	By:	/s/ Robert Liscouski
	 	Name:	Robert Liscouski
	 	Title:	Chief Executive Officer


 






[Signature
Page for the Note Purchase Agreement]


 




     


     


    

 


EXHIBIT A


 


FORM
OF NOTE


 


(attached)


 




     


     


    

 


UNSECURED PROMISSORY NOTE


 


THIS PROMISSORY NOTE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR THE SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY
NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT.


 


	$1,250,000.00	February 18, 2022



 


FOR VALUE RECEIVED,
QPhoton, Inc., a Delaware corporation (the “Company”), hereby promises to pay to the order of Quantum Computing
Inc., a Delaware corporation (“Holder”), the principal sum of $1,250,000.00 (the “Principal Amount”),
together with interest accruing on the unpaid portion of the Principal Amount until maturity at the rate of interest set forth in Section
2(a) on the terms and subject to the conditions of this Unsecured Promissory Note (including all renewals, extensions or modifications
hereof, this “Note”).


 


1. Terms. 
This Note is one of the unsecured promissory notes being issued and delivered pursuant to Section 1 of that certain Note Purchase
Agreement, dated as of February 18, 2022 (as the same may be amended, restated, supplemented or otherwise modified from time to time,
the “Note Purchase Agreement”) by and between Holder and the Company (all such Notes, collectively, the “Notes”).
Unless otherwise set forth herein, all capitalized terms used herein without definition shall have the meanings given to such terms in
the Note Purchase Agreement.


 


2. Payments.


 


(a) The unpaid portion of the
Principal Amount shall bear six percent (6%) simple interest, payable until such time as all accrued interest and the Principal Amount
is paid in full on the Outside Maturity Date (as defined in Section 2(b)). Following an Event of Default (as defined in Section
4), any unpaid principal shall accrue interest at a rate of 15% simple interest until the time such Event of Default has been cured.





(b) Subject to the default provisions set forth
herein, the unpaid portion of the Principal Amount, and all accrued and unpaid interest thereon, shall be due and payable upon the earlier
of (i) March 1, 2023, or if the Company delivers a written request to extend such maturity date by one (1) year, such maturity date shall
be March 1, 2024, (ii) a Change of Control (as defined below), other than as a result of a Change of Control transaction between the Company
and the Holder or (iii) an Event of Default (as defined in Section 4) (such earliest date, the “Outside Maturity Date”).
For the purposes of this Note, a “Change of Control” shall mean (i) the sale, conveyance, exchange, exclusive
license or other transfer of all or substantially all of the intellectual property or assets of the Company, (ii) any acquisition of the
Company in which the Company is a party, by means of a consolidation, stock exchange, merger or other form of corporate reorganization
of the Company with any other entity in which the Company’s stockholders immediately prior to such stock exchange, merger or other
reorganization own less than a majority of the voting securities of the surviving entity immediately following such transaction, or (iii)
any transaction or series of related transactions in which the Company is a party, to a person or group of persons (other than an underwriter
of the Company’s securities), following which such person or group of persons would hold more than fifty percent (50%) of the outstanding
voting stock of the Company. Notwithstanding any of the foregoing to the contrary, a bona fide financing transaction or series of related
transactions in which the Company sells preferred stock or common stock for the sole purpose of raising capital shall not be deemed a
Change of Control for purposes of this Note.


 


(c) All payments due and
payable from the Company to Holder under this Note shall be made in lawful currency of the United States of America at the
Holder’s address listed following Holder’s signature block at the end of this Note or such other place as Holder shall
designate in writing, and, at Holder’s option, shall be payable by check or wire transfer.


 


3. Prepayment.
This Note may be prepaid at any time by the Company without penalty.


 


4. Events
of Default.


 


(a) An
“Event of Default” under this Note shall mean the occurrence of any of the following:


 


(i) Failure to Pay.
The Company shall fail to pay any principal or interest payment on the Outside Maturity Date;


 






    2


     


    

 


(ii) Involuntary Bankruptcy,
Etc. (A) A court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Company in an involuntary
case under Title 11 of the United States Code entitled “Bankruptcy” (as now and hereinafter in effect, or any successor thereto,
the “Bankruptcy Code”) or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect,
which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (B) an
involuntary case shall be commenced against the Company under any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect; or a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator, sequestrator,
trustee, custodian or other officer having similar powers over the Company or over all or a substantial part of its property shall have
been entered; or the involuntary appointment of an interim receiver, trustee or other custodian of the Company for all or a substantial
part of its property shall have occurred; or a warrant of attachment, execution or similar process shall have been issued against any
substantial part of the property of the Company, and, in the case of any event described in this clause (B), such event shall have continued
for sixty (60) days unless dismissed, bonded or discharged;


 


(iii) Voluntary Bankruptcy,
Etc. An order for relief shall be entered with respect to the Company or the Company shall commence a voluntary case under the Bankruptcy
Code or any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or shall consent to the entry of an order
for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent
to the appointment of or taking possession by a receiver, trustee or other custodian for all or a substantial part of its property, or
the Company shall make an assignment for the benefit of creditors; or the Company shall admit in writing its inability to pay its debts
as such debts become due; or the Board shall adopt any resolution or otherwise authorize action to approve any of the foregoing;


 


(iv) Breach.
The Company shall materially breach (and such breach is not cured within fifteen (15) days from delivery of written notice of breach to
the Company by the Holder) any representation, warranty, or covenant in any of the Financing Documents (as defined in the Note Purchase
Agreement);


 


(v) Cross-Default.
The Company fails to make a payment following the due date and any applicable cure period related thereto. under any other material indebtedness
of the Company in excess of two hundred fifty thousand dollars ($250,000), if the effect of such default is to allow the acceleration
of the maturity of such other indebtedness; or


 


(vi) Dissolution,
Etc. The Company engages in any liquidation, dissolution or winding up of the Company; or


 


(vii) Judgments. A
final judgment or order for the payment of money in excess of two hundred fifty thousand dollars ($250,000) shall be rendered against
the Company and the same shall remain undischarged for a period of sixty (60) days during which execution shall not be effectively stayed,
or any judgment, writ, assessment, warrant of attachment, or execution or similar process shall be issued or levied against a substantial
part of the Company’s property valued at not less than two hundred fifty thousand dollars ($250,000), if any and such judgment,
writ, or similar process shall not be released, stayed, vacated or otherwise dismissed within sixty (60) days after issue or levy.


  


(b) Upon the
election of the Holder, during the continuance of an Event of Default, the entire unpaid portion of the Principal Amount, all accrued
but unpaid interest and all other amounts due Holder hereunder shall become immediately due and payable without presentment, demand, protest
or any other notice of any kind, all of which are hereby expressly waived. In addition to any other rights Holder may have under applicable
laws, Holder shall have the right to set off the indebtedness evidenced by this Note against any other indebtedness of the Holder to the
Company.


 


(c) In the
event the Company fails to make any payment of principal or accrued interest on this Note to Holder upon an Event of Default, the Company
hereby agrees that it will reimburse Holder for any and all reasonable advances, charges, costs and expenses, including the reasonable
fees and expenses of its counsel and of any experts or agents, that Holder incurred in connection with the enforcement by Holder of the
Company’s payment obligations under this Note.


 


5. Replacement
of Lost Note. Upon receipt of evidence satisfactory to the Company of the loss, theft, destruction or mutilation of this Note
and, in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Company, or, in
the case of any such mutilation, upon surrender and cancellation of this Note, the Company will make and deliver, in lieu of such
lost, stolen, destroyed or mutilated Note, a new debenture of like tenor dated as of the date from which unpaid interest has then
accrued on the lost, stolen, destroyed or mutilated Note.


 






    3


     


    

 


6. No Rights
or Liabilities as Equityholder. This Note does not by itself entitle Holder to any voting rights or other rights as a
stockholder of the Company. No provisions of this Note, and no enumeration herein of the rights or privileges of Holder, shall cause
Holder to be a stockholder of the Company for any purpose.


 


7. Ranking.
This Note and the other Note shall rank pari passu with any other indebtedness of the Company as to the payment of principal and
interest. The Company will not enter into any other agreement where it agrees to be indebted for borrowed money (directly or as a guarantor)
unless such indebtedness for borrowed money has been made subordinate to, or ranks pari passu with, the payment of all amounts due hereunder.


 


8. Miscellaneous.


 


8.1 Governing
Law; Arbitration. This Note shall be governed by and construed in accordance with the laws of the State of Delaware. Disputes shall
be subject to binding arbitration in accordance with Section 7.3(b) of the Note Purchase Agreement.


 


8.2 Entire
Agreement. This Note, together with the Note Purchase Agreement and any other documents executed in connection herewith, constitute
the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof.


 


8.3 Amendments.
No term of this Note may be amended, waived, discharged or terminated except in accordance with Section 7.9 of the Note
Purchase Agreement.


 


8.4  Notices,
etc. All notices, requests, demands and other communications made under this Note shall be made in accordance with Section 7.6
of the Note Purchase Agreement.


 




 


8.5 Delays
or Omissions. No delay or omission to exercise any right, power or remedy accruing to Holder upon any breach or default of the Company
under this Note shall impair any such right, power or remedy of Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or
approval of any kind or character on the part of Holder of any breach or default under this Note, or any waiver on the part of Holder
of any provision or condition of this Note must be made in writing and shall be effective only to the extent specifically set forth in
such writing. All remedies, either under this Note or by law or otherwise afforded to Holder, shall be cumulative and not alternative.


  


8.6 Severability.
In case any provision of this Note shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.


 


8.7 Usury.
In the event any interest is paid on this Note which is deemed to be in excess of the then legal maximum rate, then that portion of the
interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied against
the principal of this Note. With respect to this Note, the Company agrees to file any and all required notices and make any and all required
disclosures as may be required under the applicable usury laws of all applicable jurisdictions.


 


8.8 Titles.
The titles of the Sections and subsections of this Note are for convenience or reference only and are not to be considered in
construing this Note.


 


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intentionally left blank]


 




    4


     


    

 


IN WITNESS WHEREOF,
this Note has been duly executed on behalf of the undersigned as of the date first written above.


 


	THE COMPANY:	 	HOLDER:
	 	 	 
	QPHOTON, INC.	 	QUANTUM COMPUTING INC.


 


	By:	 	 	By:	 
	Name:	Yuping Huang	 	Name:	Robert Liscouski
	Title:	Chief Executive Officer	 	Title:	Chief Executive Officer