EXHIBIT 10.01


 








EXCHANGE
AGREEMENT


 


This
Exchange Agreement (the “Agreement”) is entered into as of this 23rd day of December, 2019, by and between
ToughBuilt Industries, Inc., a Nevada corporation with offices located at 25371 Commercentre Drive, Suite 200, Lake Forest, CA
9263 (the “Company”) and the Holder signatory hereto (the “Holder”), with reference to the
following facts:


 


A. Prior
to the date hereof, pursuant to that Securities Purchase Agreement, dated as of August 19, 2019, by and between the Company and
the investors party thereto (the “Securities Purchase Agreement”), the Company issued, among other things,
senior convertible notes, convertible into shares of Common Stock (as defined below), in accordance with the terms thereof (the
“Original Notes”). Capitalized terms used but not otherwise defined herein shall have the meanings as set forth
in the Securities Purchase Agreement (as amended hereby).


 


B. The
Company has authorized a new series of convertible preferred stock of the Company designated as Series D Convertible Preferred
Stock, $0.001 par value, the terms of which are set forth in the certificate of designation for such series of preferred stock
(the “New Certificate of Designations”) in the form attached hereto as Exhibit A (together with
any convertible preferred shares issued in replacement thereof in accordance with the terms thereof, the “Series D Preferred
Stock”), which Series D Preferred Stock shall be convertible into shares of Common Stock, in accordance with the terms
of the New Certificate of Designations.


 


C. The
Company and the Holder desire to exchange (the “Exchange” or the “Transaction”) such aggregate
principal of the Original Note issued to the Holder as set forth on the signature page of the Holder attached hereto (the “Existing
Note”), on the basis and subject to the terms and conditions set forth in this Agreement, for (x) such aggregate number
of shares of Series D Preferred Stock as set forth on the signature page of the Holder attached hereto (the “New Preferred
Shares”, and such shares of Common Stock issuable pursuant to the terms of the Series D New Certificate of Designations,
including, without limitation, upon conversion or otherwise, collectively, the “New Conversion Shares”, and
together with the New Preferred Shares, the “New Securities”). The New Preferred Shares, the New Conversion
Shares and this Agreement and such other documents and certificates related thereto are collectively referred to herein as the
“Exchange Documents”.


 


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


 


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


 


1. Exchange.
On the date hereof, pursuant to Section 3(a)(9) of the 1933 Act, the Holder hereby agrees to convey, assign and transfer the Existing
Note to the Company in exchange for which the Company agrees to issue the New Preferred Shares to the Holder. On the date hereof,
in exchange for the Existing Note, the Company shall issue the New Preferred Shares to the Holder. On the date hereof, the Holder
shall be deemed for all corporate purposes to have become the holder of record of the New Preferred Shares and shall be entitled
to exercise all of its rights with respect to the New Preferred Shares and, irrespective of the date the Company delivers the
certificates evidencing the New Preferred Shares and to the Holder.


 




    	 	 	 



    	 



    

 


2. Ratifications;
Incorporation of Terms under Transaction Documents; Waivers.


 


(a) Ratifications.
Except as otherwise expressly provided herein, the Securities Purchase Agreement, and each other Transaction Document, is, and
shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after
the date hereof: (i) all references in the Securities Purchase Agreement to “this Agreement”, “hereto”,
“hereof”, “hereunder” or words of like import referring to the Securities Purchase Agreement shall mean
the Securities Purchase Agreement as amended by this Agreement, and (ii) all references in the other Transaction Documents to
the “Securities Purchase Agreement”, “thereto”, “thereof”, “thereunder” or words
of like import referring to the Securities Purchase Agreement shall mean the Securities Purchase Agreement as amended by this
Agreement.


 


(b) Amendments
and Incorporation of Terms under Transaction Documents. Effective as of the date hereof, the Securities Purchase Agreement
and each of the other Transaction Documents are hereby amended as follows (and any such agreements, covenants and related provisions
therein shall be deemed incorporated by reference herein, mutatis mutandis, as amended as such):


 


(i)
The defined term “Notes” is hereby amended to include the New Preferred Shares (as defined herein).


 


(ii)
The defined term “Conversion Shares” is hereby amended to include New Conversion Shares (as defined herein).


 


(iii)
The defined term “Transaction Documents” is hereby amended to include this Agreement.


 


(iv)
The defined term “Event of Default” is hereby amended to include the Triggering Events (as defined in the Certificate
of Designations).


 


(c) Waivers.
Effective as of the date hereof, until such time as no New Preferred Shares remain outstanding and no other payment amounts remain
outstanding under the Certificate of Designations, the Company hereby waives (i) any right to effect a Company Optional Redemption
(as defined in the Existing Notes) of any Existing Note and (ii) any right to effect any Netting at the election of the Company
in any of the Transaction Documents (except, for the avoidance of doubt, any Netting made at the election of the applicable holder
of Existing Notes).


 




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


 


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


 


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


 




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3.3 No
Conflict. Except as set forth on Schedule 3.3, the execution, delivery and performance of the Exchange Documents by
the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation,
the issuance of the New Preferred Shares in accordance with the terms hereof and the reservation and issuance of the New Conversion
Shares in accordance with the terms of the New Certificate of Designations, as applicable) will not (i) result in a violation
of the Articles of Incorporation (as defined below) or any other organizational documents of the Company or any of its Subsidiaries,
any capital stock of the Company or any of its Subsidiaries or Bylaws (as defined below) of the Company or any of its Subsidiaries,
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree (including foreign, federal and state securities laws and regulations and the rules and regulations of the
Nasdaq Capital Market (the “Principal Market”) and including all applicable federal laws, rules and regulations)
applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries
is bound or affected.


 


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


 


3.5 Securities
Law Exemptions. Assuming the accuracy of the representations and warranties of the Holder contained herein, the offer and
issuance by the Company of the New Securities is exempt from registration under the 1933 Act pursuant to the exemption provided
by Rule 3(a)(9) thereof.


 




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3.6 Issuance
of New Securities. The issuance of the New Preferred Shares are duly authorized and, upon issuance in accordance with the
terms of this Agreement, the New Preferred Shares shall be validly issued, fully paid and non-assessable and free from all preemptive
or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security
interests and other encumbrances (collectively “Liens”) with respect to the issue thereof. Upon exercise in
accordance with the New Certificate of Designations, the New Conversion Shares, when issued, will be validly issued, fully paid
and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders
being entitled to all rights accorded to a holder of Common Stock. The offer and issuance by the Company of the New Securities
is exempt from registration under the 1933 Act.


 


3.7 Transfer
Taxes. On the date hereof, all share transfer or other taxes (other than income or similar taxes) which are required to be
paid in connection with the issuance of the New Securities to be exchanged with the Holder hereunder will be, or will have been,
fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


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


 




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3.9 Absence
of Certain Changes. Except as set forth in the SEC Documents, since the date of the Company’s most recent audited financial
statements contained in a Form 10-K, there has been no material adverse change and no material adverse development in the business,
assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the
Company or any of its Subsidiaries. Since the date of the Company’s most recent audited financial statements contained in
a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually
or in the aggregate, outside of the ordinary course of business or (iii) except as disclosed in the SEC Documents, made any capital
expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its
Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization,
receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any
of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which
would reasonably lead a creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, are not
as of the date hereof, and after giving effect to the transactions contemplated hereby to occur on the date hereof, will not be
Insolvent (as defined below). For the purpose of this Agreement (x) “Insolvent” means, (i) with respect to
the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Company’s and its
Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total Indebtedness
(as defined below), (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur
or believe that they will incur debts that would be beyond their ability to pay as such debts mature; and (ii) with respect to
the Company and each Subsidiary, individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s
(as the case may be) assets is less than the amount required to pay its respective total Indebtedness, (B) the Company or such
Subsidiary (as the case may be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured or (C) the Company or such Subsidiary (as the case may be) intends to
incur or believes that it will incur debts that would be beyond its respective ability to pay as such debts mature; (y) “Indebtedness”
of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance
with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all
reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations
evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds
of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which,
in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness
referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and contract rights) owned by any
Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness,
and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A)
through (G) above; and (z) “Contingent Obligation” means, as to any Person, any direct or indirect liability,
contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person
if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will
be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.


 




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


 


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


 




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


 


3.13 Equity
Capitalization.


 


(a) Definitions:


 


(i) “Common
Stock” means (x) the Company’s shares of common stock, $0.001par value per share, and (y) any capital stock into
which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(ii) “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.001 par value per share, the terms of which may
be designated by the board of directors of the Company in a certificate of designations and (y) any capital stock into which such
preferred stock shall have been changed or any share capital resulting from a reclassification of such preferred stock (other
than a conversion of such preferred stock into Common Stock in accordance with the terms of such certificate of designations).


 


(b) Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) 100,000,000
shares of Common Stock, of which, million are issued and outstanding as of the date hereof and 35,500,000 million are reserved
for issuance pursuant to Convertible Securities (as defined below), in each case exercisable or exchangeable for, or convertible
into, shares of Common Stock, and (B) 10 million shares of Preferred Stock, of which 7,040 shares are issued and outstanding.
4,000,000 shares of Common Stock are held in the treasury of the Company. “Convertible Securities” means any
capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly
or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any
capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.


 


(c) Valid
Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance
will be, validly issued and are fully paid and nonassessable. Schedule 3.13 sets forth the number of shares of Common Stock
that are (A) reserved for issuance pursuant to Convertible Securities and (B) that are, as of the date hereof, owned by Persons
who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers,
directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates”
without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or
any of its Subsidiaries.


 




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


 


(e) Organizational
Documents. The Company has furnished to the Holder true, correct and complete copies of the Company’s Articles of Incorporation,
as amended and as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws,
as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all Convertible Securities
and the material rights of the holders thereof in respect thereto.


 


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


 




    	 	9	 



    	 



    

 


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


 


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


 


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


 


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


 




    	 	10	 



    	 



    

 


4.2 No
Governmental Review. The Holder understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the New Securities or the fairness or suitability of the investment
in the New Securities nor have such authorities passed upon or endorsed the merits of the offering of the New Securities.


 


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


 


4.4 No
Conflicts. The execution, delivery and performance by the Holder of this Agreement and the Exchange Documents to which the
Holder is a party, and the consummation by the Holder of the transactions contemplated hereby and thereby will not (i) result
in a violation of the organizational documents of the Holder or (ii) conflict with, or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration
or cancellation of, any agreement, indenture or instrument to which the Holder is a party, or (iii) result in a violation of any
law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Holder, except
in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Holder to perform its obligations
hereunder.


 


4.5 Investment
Risk; Sophistication. The Holder is acquiring the New Securities hereunder in the ordinary course of its business. The Holder
has such knowledge, sophistication, and experience in business and financial matters so as to be capable of evaluation of the
merits and risks of the prospective investment in the New Securities, and has so evaluated the merits and risk of such investment.
The Holder is an “accredited Holder” as defined in Regulation D under the 1933 Act.


 


4.6 Ownership
of Existing Note. The Holder owns the Existing Note free and clear of any Liens (other than the obligations pursuant to this
Agreement and applicable securities laws).


 




    	 	11	 



    	 



    

 


 


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


 


6. No
Integration. None of the Company, its Subsidiaries, any of their affiliates, or any Person acting on their behalf shall,
directly or indirectly, make any offers or sales of any security (as defined in the 1933 Act) or solicit any offers to buy any
security or take any other actions, under circumstances that would require registration of any of the New Conversion Shares under
the 1933 Act or cause this offering to be integrated with such offering or any prior offerings by the Company for purposes of
Regulation D under the 1933 Act.


 


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


 


8. Fees.
The Company shall reimburse Kelley Drye & Warren, LLP (counsel to the lead Holder) in an aggregate non-accountable amount
of $[ ] for costs and expenses incurred by it in connection with drafting and negotiation of the Exchange Documents. Each party
to this Agreement shall bear its own expenses in connection with the structuring, documentation, negotiation and closing of the
transactions contemplated hereby, except as provided in the previous sentence and except that the Company shall be responsible
for the payment of any placement agent’s fees, financial advisory fees, transfer agent fees, Depository Trust Company (“DTC”)
fees relating to or arising out of the transactions contemplated hereby.


 




    	 	12	 



    	 



    

 


9. Holding
Period. For the purposes of Rule 144, the Company acknowledges that the holding period of the New Preferred Shares (and
upon conversion thereof, the New Conversion Shares) may be tacked onto the holding period of the Existing Note the Company agrees
not to take a position contrary to this Section 9. The Company acknowledges and agrees that (assuming the Holder is not an affiliate
of the Company) (i) the New Preferred Shares (and upon conversion thereof, the New Conversion Shares) will be, as of February
19, 2020, eligible to be resold pursuant to Rule 144, (ii) the Company is not aware of any event reasonably likely to occur that
would reasonably be expected to result in the New Preferred Shares (and upon conversion thereof, the New Conversion Shares), from
and after February 19, 2020, becoming ineligible to be resold by the Holder pursuant to Rule 144 and (iii) in connection with
any resale of the New Conversion Shares pursuant to Rule 144, from and after February 19, 2020, the Holder shall solely be required
to provide reasonable assurances that such applicable New Conversion Shares are eligible for resale, assignment or transfer under
Rule 144, which shall not include an opinion of Holder’s counsel. The Company shall be responsible for any transfer agent
fees or DTC fees or legal fees of the Company’s counsel with respect to the removal of legends, if any, or issuance of any
New Conversion Shares in accordance with the terms of the New Certificate of Designations.


 


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


 


11. Most
Favored Nation. The Company hereby represents and warrants as of the date hereof and covenants and agrees that none of
the terms offered to any Person with respect to any exchange of any Original Note, including, without limitation with respect
to any consent, release, amendment, settlement, or waiver relating thereto (each an “Settlement Document”),
is or will be more favorable to such Person (other than any reimbursement of legal fees) than those of the Holder and this Agreement.
If, and whenever on or after the date hereof, the Company enters into a Settlement Document, then (i) the Company shall provide
notice thereof to the Holder immediately following the occurrence thereof and (ii) the terms and conditions of this Agreement
shall be, without any further action by the Holder or the Company, automatically amended and modified in an economically and legally
equivalent manner such that the Holder shall receive the benefit of the more favorable terms and/or conditions (as the case may
be) set forth in such Settlement Document, provided that upon written notice to the Company at any time the Holder may elect not
to accept the benefit of any such amended or modified term or condition, in which event the term or condition contained in this
Agreement shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment
or modification never occurred with respect to the Holder. The provisions of this Section 11 shall apply similarly and equally
to each Settlement Document.


 




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


 


13. Miscellaneous.


 


1. Successors
and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the parties hereto and the respective successors and assigns of the parties. Nothing in this Agreement, express
or implied, is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, any
rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.


 


2. Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this
Agreement 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. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state or 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. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 




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3. Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


4. Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon delivery, when
sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party) or by electronic mail; or (iii) one Trading Day after deposit with an overnight courier service, in each case properly
addressed to the party to receive the same. The addresses, facsimile numbers and e-mail addresses for such communications shall
be as set forth on the signature pages attached hereto or to such other address, facsimile number and/or e-mail address and/or
to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5)
days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine or e-mail
containing the time, date, recipient facsimile number and an image of the first page of such transmission or (C) provided by an
overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 


5. Finder’s
Fees. Each party represents that it neither is nor will be obligated for any finders’ fee or commission in connection
with this transaction. The Company shall indemnify and hold harmless the Holder from any liability for any commission or compensation
in the nature of a finders’ fee (and the costs and expenses of defending against such liability or asserted liability) for
which the Company or any of its officers, employees or representatives is responsible.


 


6. Amendments
and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement 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 Holder.


 


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


 


8. Entire
Agreement. This Agreement together with the other Exchange Documents, represents the entire agreement and understandings between
the parties concerning the Exchange and the other matters described herein and therein and supersedes and replaces any and all
prior agreements and understandings solely with respect to the subject matter hereof and thereof. Except as expressly set forth
herein, nothing herein shall amend, modify or waive any term or condition of the other Exchange Documents.


 




    	 	15	 



    	 



    

 


9. Counterparts.
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.


 


10. Interpretation.
Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular
the plural, the part the whole, (b) references to any gender include all genders, (c) “including” has the inclusive
meaning frequently identified with the phrase “but not limited to” and (d) references to “hereunder” or
“herein” relate to this Agreement.


 


11. No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.


 


12. Survival.
The representations, warranties and covenants of the Company and the Holder contained herein shall survive the consummation of
the Exchange and the issuance and delivery of the New Securities.


 


13. Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall
execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request
in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated
hereby.


 


14. No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.


 


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    	 	16	 



    	 



    

 


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


 


	 	COMPANY:
	 	 	 
	 	TOUGHBUILT
    INDUSTRIES, INC.
	 	 	                    
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 	Address:	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 
	 	 	 


 




    	 	 	 



    	 



    

 


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


 





	 	 	HOLDER:
	 	 	 	 
	Aggregate
    Principal of Original Note to be exchanged:	 	[                           }
	 	 	 	                  
	 	 	By:	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 
	Aggregate
    Number of Preferred Shares to be issued in Exchange:	 	Address: