Exhibit
10.1


 


SECURITIES
PURCHASE AGREEMENT


 


This
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of June 21, 2018, is by and among Helios and
Matheson Analytics Inc., a Delaware corporation with offices located at Empire State Building, 350 5th Avenue, New York, New York
10118 (the “Company”), and each of the investors listed on the Schedule of Buyers attached hereto (individually,
a “Buyer” and collectively, the “Buyers”).


 


RECITALS


 


A.  The
Company and each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration
afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of
Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the
“SEC”) under the 1933 Act.


 


B.  The
Company has authorized (i) a new series of Preferred Stock (as defined below) of the Company designated as Series A Preferred
Stock, $0.01 par value, the terms of which are set forth in the certificate of designation for such Preferred Stock (the “Certificate
of Designations”) in the form attached hereto as Exhibit A-1 (together with any preferred shares issued
in replacement thereof in accordance with the terms thereof, the “Series A Preferred Stock”) and (ii) a new
series of senior secured convertible notes of the Company, in the aggregate original principal amount of $164.0 million, substantially
in the form attached hereto as Exhibit A-2 (the “Notes”), which Notes shall be convertible into
shares of Common Stock (as defined below) (the shares of Common Stock issuable pursuant to the terms of the Notes, including,
without limitation, upon conversion or otherwise, collectively, the “ “Conversion Shares”), in accordance
with the terms of the Notes.


 


C.  Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) the aggregate
number of shares of Series A Preferred Stock (the “Preferred Shares”) set forth opposite such Buyer’s
name in column (3) on the Schedule of Buyers and (ii) a Note in the aggregate original principal amount set forth opposite such
Buyer’s name in column (4) on the Schedule of Buyers and with an Initial Unrestricted Principal (as defined in the Note)
as set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers.


 


D.  The
Preferred Shares, the Notes and the Conversion Shares are collectively referred to herein as the “Securities.”


 


E.  Concurrently
herewith the Company and each Buyer, separately, have entered into a Note Securities Purchase Agreement in the form attached hereto
as Exhibit B (each as amended, modified, supplemented, extended, renewed, restated or replaced from time to time,
collectively, the “Note Purchase Agreements”) pursuant to which the Company shall acquire a secured promissory
note issued by the applicable Buyer (each, an “Investor Note”, and collectively, the “Investor Notes”)
as payment of the Note Purchase Price (as defined below) hereunder.


 






     


     


    

 


F.  On
November 6, 2017, the Company and a Buyer hereunder (the “November Buyer”) entered into a securities purchase
agreement (as amended prior to the date hereof, the “November Securities Purchase Agreement”), pursuant to
which such November Buyer purchased certain November Notes (as defined in the Notes). On January 11, 2018, the Company and certain
investors (including one or more Buyers hereunder) (the “January Buyers”) entered into a securities purchase
agreement (as amended prior to the date hereof, the “January Securities Purchase Agreement”), pursuant to which
such January Buyers purchased certain January Notes (as defined in the Notes).


 


G.  Such
portion of each Note consisting of Unrestricted Principal (as defined in the Notes) from time to time, if any, will be subordinate
solely with respect to cash payments (other than Permitted Payments (as defined in the Notes)) to the November Notes and the January
Notes and senior to all outstanding and future indebtedness of the Company, and its Subsidiaries (as defined below) (other than
Permitted Indebtedness (as defined in the Notes) secured by Permitted Liens (as defined in the Notes)), except that such portion
of each Note consisting of Restricted Principal (as defined in the Notes) will be secured by the Investor Note related thereto
(collectively, the “Ranking”) and the obligations of the Company under the Notes and the other Transaction
Documents (as defined below) will be guaranteed by MoviePass Inc., a Delaware corporation (“MoviePass”) pursuant
to a guaranty in the form attached hereto as Exhibit C (each, a “Guaranty”, and together with
the other security documents and agreements entered into in connection with this Agreement and each of such other documents and
agreements, as each may be amended or modified from time to time, collectively, the “Security Documents”).


 


H. Concurrently herewith, the Company and each Buyer, separately, are entering into that certain Master Netting Agreement,
in substantially the form attached hereto as Exhibit D (the “Master Netting Agreement”), to provide
further clarification of their rights (but not, in the case of each such Buyer only, its obligation) to Net (as defined below)
certain Obligations (as defined in the Master Netting Agreement) arising under and across this Agreement, the Investor Note, the
Notes and the Note Purchase Agreement (collectively, the “Underlying Agreements”) and to treat the Master Netting
Agreement, this Agreement and the other Underlying Agreements as a single agreement for the purposes set forth herein and to treat
this Agreement and the Note Purchase Agreement each as a “securities contract” (11 U.S.C. § 741) or other similar
agreements.


 


I.  The
Company has engaged Canaccord Genuity Inc. as the placement agent (the “Placement Agent”) for the offering
of the Securities on a “best efforts” basis.


 






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AGREEMENT


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:


 


1.  
PURCHASE AND SALE OF PREFERRED SHARES AND NOTES.


 


(a)  
Purchase of Preferred Shares and Notes. Subject to the satisfaction (or waiver) of the conditions set forth in Sections
6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from
the Company on the Closing Date (as defined below) (i) the aggregate number of Preferred Shares as is set forth opposite such
Buyer’s name in column (3) on the Schedule of Buyers and (ii) a Note in the original principal amount as is set forth opposite
such Buyer’s name in column (4) on the Schedule of Buyers and with an Initial Unrestricted Principal (as defined
in the Note) as set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers.







 


(b)  
Closing. The closing (the “Closing”) of the purchase of the Preferred Shares and the Notes by the Buyers
shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. The date and time of the Closing
(the “Closing Date”) shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions
to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the
Company and each Buyer). As used herein “Business Day” means any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required by law to remain closed.


 


(c)   Purchase
Price. The aggregate purchase price for the Preferred Shares and the Notes to be purchased by each Buyer
(the “Purchase Price”) shall be (i) the aggregate amount as set forth opposite such Buyer’s name in
column (6) on the Schedule of Buyers, consisting of (A) a payment in cash of such aggregate amount as set forth opposite such
Buyer’s name in column (7) on the Schedule of Buyers (the “Cash Purchase Price”) (less, in the case
of any Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Preferred Shares to be issued and sold to
such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as
defined below) and (B) the aggregate amount as set forth opposite such Buyer’s name in column (8) on the Schedule of
Buyers (the “Note Purchase Price”) to be satisfied, in full, by the issuance by such Buyer of an Investor
Note in the aggregate original principal amount equal to the Note Purchase Price. The Initial Unrestricted Principal of the
Notes represent an original issue discount of approximately 15% and will be included in the aggregate principal of the Note
for no additional consideration. In addition, at the Closing, an authorized person of such Buyer shall certify in a written
certificate in the form attached hereto as Exhibit E (the “Investor Collateral Certificate”) that
as of the Closing Date the bank account described on Schedule I to such Investor Note, which secures such Investor Note in
accordance therewith, contains at least the Note Purchase Price of Eligible Assets (as defined in the Investor Note) as of
the Closing Date.


 


(d)   Form
of Payment. On the Closing Date, (i) each Buyer shall acquire the Preferred Shares and the Notes by (A) paying its
respective  Cash Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)) to
the Company by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below)
and (B) in accordance with the instructions of the Company in the Flow of Funds Letter, maintaining physical possession of a
duly executed Investor Note of such Buyer, in such original principal amount as is set forth across from such Buyer’s
name in column (8) of the Schedule of Buyers, issued pursuant to the Note Purchase Agreement of such Buyer, both as payment
for the Restricted Principal (as defined in such Buyer’s Note) of, and as Collateral (as defined in such Buyer’s
Note) securing, such Buyer’s Note to be issued and sold to such Buyer at the Closing and (ii) the Company shall
deliver to each Buyer (A) the aggregate number of Preferred Shares as is set forth opposite such Buyer’s name in column
(3) of the Schedule of Buyers and (B) a Note in the aggregate original principal amount as is set forth opposite such
Buyer’s name in column (4) of the Schedule of Buyers and with an Initial Unrestricted Principal (as defined in the
Note) as set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers, in each case, duly executed on
behalf of the Company and registered in the name of such Buyer or its designee.


 






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(e)  
Securities Contract; Netting Safe Harbor. The Company hereby acknowledges and agrees that the rights and obligations of
each Buyer under the Note Purchase Agreement of such Buyer, under the Investor Note of such Buyer, under the Note to be issued
hereunder to such Buyer and the rights and obligations of the Company hereunder, under each such Investor Note, under each such
Note and under each such Note Purchase Agreement, respectively, arise in a single integrated transaction and constitute related
and interdependent obligations within such transaction. The Company and each Buyer, severally, hereby acknowledge and agree that
this Agreement and the Note Purchase Agreement each are a “securities contract” as defined in 11 U.S.C. § 741
and that each such Buyer shall have all rights in respect of the Master Netting Agreement, this Agreement and the other Underlying
Agreements as are set forth in 11 U.S.C. § 555 and 11 U.S.C. § 362(b)(6), including, without limitation, all rights
of credit, deduction, setoff, offset, recoupment, and netting (collectively, “Netting”) as are available under
the Master Netting Agreement, this Agreement and the other Underlying Agreements, and all Netting provisions of the Master Netting
Agreement, each Note and each Investor Note, including without limitation the provisions set forth in Section 7 of each Investor
Note, are hereby incorporated in this Agreement and made a part hereof as if such provisions were set forth herein.


 


(f)  
Consents and Waivers.


 


(i)  The
November Buyer signatory hereto, in its capacity as the “Required Holders” under the November Notes, hereby consents
to the transactions contemplated hereby, (x) agrees the Notes shall constitute Permitted Indebtedness (as defined in the November
Notes) and Permitted Liens (as defined in the November Notes) thereunder, which shall reflect the Ranking, and (y) waives (1)
any right that the holders of the November Notes may have to adjust the Conversion Price (as defined in the November Notes) pursuant
to Section 7 of the November Notes as a result of the issuance of the Notes or any of the Conversion Shares, which waiver shall
be binding on all existing and future holders of the November Notes in accordance with Section 17 of the November Notes (the “November
Notes Anti-Dilution Waiver”) and (2) any prohibition that may exist under any provision of the Transaction Documents
(as defined in the November Securities Purchase Agreement) with respect to the issuance of the Notes and any of the Conversion
Shares and with respect to any cash payments that the Company may make pursuant to the Notes (the “November Negative
Covenants Waiver”).


 


(ii)  
The January Buyer signatory hereto, in its capacity as the “Required Holders” under the January Notes, hereby consents
to the transactions contemplated hereby, (x) agrees the Notes shall constitute Permitted Indebtedness (as defined in the January
Notes) and Permitted Liens (as defined in the January Notes) thereunder, which shall reflect the Ranking, (z) the definition of
“Stockholder Meeting Deadline” in the January Securities Purchase Agreement is hereby amended and restated as July
18, 2018 and (z) waives (1) any right that the holders of the January Notes may have to adjust the Conversion Price (as defined
in the January Notes) pursuant to Section 7 of the January Notes as a result of the issuance of the Notes or any of the Conversion
Shares, which waiver shall be binding on all existing and future holders of the January Notes in accordance with Section 17 of
the January Notes (the “January Notes Anti-Dilution Waiver”) and (2) any prohibition that may exist under any
provision of the Transaction Documents (as defined in the January Securities Purchase Agreement) with respect to the issuance
of the Notes and any of the Conversion Shares and with respect to any cash payments that the Company may make pursuant to the
Notes (the “January Negative Covenants Waiver”).


 






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(iii)  
The November Buyer and the January Buyer signatory hereto, each in its capacity as the “Required Holders” under the
November Notes and the January Notes, hereby waives any obligation of the Company to consummate any Subsequent Placement Optional
Redemption (as defined in the November Notes) or any Subsequent Placement Optional Redemption (as defined in the January Notes).


 


(iv)  
The November Buyer and the January Buyer signatory hereto, each in its capacity as the “Required Holders” under the
November Notes and the January Notes, hereby waives the restriction on transfer of assets set forth in Section 14(f) of each of
the November Notes and the January Notes, solely with respect to the Company’s previously announced planned spin-off of
shares of Zone Technologies Inc. to the securities holders of the Company (including, without limitation, the holders of such
securities set forth on Schedule 1(f)(iii) attached hereto) and the consummation of such spin-off (the “Zone Spin-Off”).


 


2.  
BUYER’S REPRESENTATIONS AND WARRANTIES.


 


Each
Buyer, severally and not jointly, represents and warrants to the Company and the Placement Agent with respect to only itself that,
as of the date hereof and as of the Closing Date:


 


(a)  
Organization; Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated
by the Transaction Documents (as defined below) to which it is a party and otherwise to carry out its obligations hereunder and
thereunder.


 


(b)  
No Public Sale or Distribution. Such Buyer (i) is acquiring its Preferred Shares and Note, and (ii) upon conversion of
its Note will acquire the Conversion Shares issuable upon conversion thereof, in each case, for its own account and not with a
view towards, or for resale in connection with, the public sale or distribution thereof in violation of applicable securities
laws, except pursuant to sales registered or exempted under the 1933 Act; provided, however, by making the representations herein,
such Buyer does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement
or an exemption from registration under the 1933 Act. Such Buyer does not presently have any agreement or understanding, directly
or indirectly, with any Person to distribute any of the Securities in violation of applicable securities laws. For purposes of
this Agreement, “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.


 






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(c)  
Accredited Investor Status. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D.


 


(d)  
Reliance on Exemptions. Such Buyer understands that the Securities are being offered and sold to it 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 such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility
of such Buyer to acquire the Securities.


 


(e)  
Information. Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances
and operations of the Company and materials relating to the offer and sale of the Securities that have been requested by such
Buyer. Such Buyer and its advisors, if any, have been afforded (i) the opportunity to ask questions of and receive answers from
the Company concerning the terms and conditions of the offering of the Notes and the merits and risks of investing in the Notes;
and (ii) access to information about the Company and its financial condition, results of operations, business, properties, management
and prospects sufficient to enable it to evaluate its investment. Neither such inquiries nor any other due diligence investigations
conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right
to rely on the Company’s representations and warranties contained herein. Such Buyer understands that its investment in
the Securities involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered
necessary to make an informed investment decision with respect to its acquisition of the Securities. Such Buyer hereby acknowledges
and agrees that it has independently evaluated the merits of its decision to purchase the Securities, and that (i) the Placement
Agent is acting solely as placement agent in connection with the execution, delivery and performance of the Transaction Documents
and is not acting as underwriter or in any other capacity and is not and shall not be construed as a fiduciary for such Buyer,
the Company or any other Person in connection with the execution, delivery and performance of the Transaction Documents, and (ii)
such Buyer has not relied on the Placement Agent or its officers, directors, employees, attorneys or affiliates with respect to
the negotiation, execution or performance of the Transaction Documents or any representation or warranty made in, in connection
with, or as an inducement to the Transaction Documents.


 


(f)  
No Governmental Review. Such Buyer 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 Securities or the fairness or suitability of
the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


 






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(g)  
Transfer or Resale. Such Buyer understands that except as provided in Section 4(h) hereof: (i) the Securities have not
been and are not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned
or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to the Company (if requested
by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Securities to be
sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such
Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule
144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”); (ii)
any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further,
if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom
the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some
other exemption under the 1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company
nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to
comply with the terms and conditions of any exemption thereunder. Notwithstanding the foregoing, the Securities may be pledged
in connection with a bona fide margin account or other loan or financing arrangement secured by the Securities and such pledge
of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge
of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant
to this Agreement or any other Transaction Document (as defined in Section 3(b)), including, without limitation, this Section
2(g).


 


(h)  
Validity; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of such Buyer
and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer 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.


 


(i)  
No Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the consummation by such Buyer
of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of such Buyer, 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 such Buyer 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 such Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts,
defaults, rights or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse
effect on the ability of such Buyer to perform its obligations hereunder.


 


(j)  
Company’s Representation and Warranties. Buyer acknowledges and agrees that the Company does not make and has not
made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set
forth in Section 3.


 






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3.  
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.


 


The
Company represents and warrants to each of the Buyers and the Placement Agent that, as of the date hereof and as of the Closing
Date:


 


(a)  
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 Transaction 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 Transaction Documents (as defined below). Other than the Persons
(as defined below) set forth on Schedule 3(a), 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, other than MoviePass, 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.”


 


(b)  
Authorization; Enforcement; Validity. The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms
hereof and thereof. Each Subsidiary has the requisite power and authority to enter into and perform its obligations under the
Transaction Documents to which it is a party. The execution and delivery of this Agreement and the other Transaction Documents
by the Company and its Subsidiaries, and the consummation by the Company and its Subsidiaries of the transactions contemplated
hereby and thereby (including, without limitation, the issuance of the Preferred Shares, the issuance of the Notes and the reservation
for issuance and issuance of the Conversion Shares issuable upon conversion of the Notes) have been duly authorized by the Company’s
board of directors and each of its Subsidiaries’ board of directors or other governing body, as applicable, and other than
(i) the filing of a Form D with the SEC and any other filings as may be required by any state securities agencies, (ii) the 8-K
Filing, (iii) a Listing of Additional Shares Notification with the Principal Market, and (iv) the Stockholder Approval (as defined
below) (collectively, the “Required Filings and Approvals”) no further filing, consent or authorization is
required by the Company, its Subsidiaries, their respective boards of directors or their stockholders or other governing body.
This Agreement has been, and the other Transaction Documents to which it is a party will be prior to the Closing, duly executed
and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with its 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 law. Prior to the Closing, the Transaction Documents to which each Subsidiary is
a party will be duly executed and delivered by each such Subsidiary, and shall constitute the legal, valid and binding obligations
of each such Subsidiary, enforceable against each such Subsidiary 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 law. Prior to the Closing, the
Certificate of Designations in the form attached hereto as Exhibit A has been filed with the Secretary of State of the State of
Delaware and is in full force and effect, enforceable against the Company in accordance with its terms and has not have been amended.
“Transaction Documents” means, collectively, this Agreement, the Certificate of Designations, the Preferred
Shares, the Notes, the Investor Note, the Security Documents, the Note Purchase Agreements, the Master Netting Agreement, the
Voting Agreement, the Voting and Lockup Agreement, the Irrevocable Transfer Agent Instructions (as defined below) and each of
the other agreements and instruments entered into or delivered by any of the parties hereto in connection with the transactions
contemplated hereby and thereby, as may be amended from time to time.


 






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(c)  
Issuance of Securities. The issuance of the Preferred Shares and the Notes are duly authorized and upon issuance in accordance
with the terms of the Transaction Documents 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 issuance thereof. As of the Closing,
the Company shall have reserved from its duly authorized capital stock not less than 5,244,756 shares of Common Stock for issuance
upon conversion of the Notes. Upon issuance or conversion in accordance with the Notes, the 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. Subject to the accuracy of the representations
and warranties of the Buyers in this Agreement, the offer and issuance by the Company of the Securities is exempt from registration
under the 1933 Act.


 


(d)  
No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and its Subsidiaries
and the consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without
limitation, the issuance of the Preferred Shares and the Notes and the reservation for issuance and issuance of the Conversion
Shares issuable upon conversion of the Notes) will not (i) result in a violation of the Certificate of Incorporation (as defined
below) (including, without limitation, any certificate of designation contained therein), Bylaws (as defined below), certificate
of formation, memorandum of association, articles of association, bylaws or other organizational documents of the Company or any
of its Subsidiaries, or any capital stock or other securities 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) in any respect 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, without limitation, 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 foreign, federal and state
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.


 






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(e)  
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 a Listing of Additional Shares Notification filed with the Principal Market,
filing of a Form D with the SEC and any other filings as may be required by any state securities agencies), any Governmental Entity
(as defined below) or any regulatory or self-regulatory agency or any other Person, except as set for in Section 1(f) herein,
in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction 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 or will be obtained or
effected on or prior to the Closing Date, 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 Transaction Documents. Assuming receipt of the Stockholder Approval to the extent required pursuant
to Nasdaq Listing Rule 5635 for conversion of the Notes, the Company is not in violation of the requirements of the Principal
Market and has no knowledge of any other facts or circumstances which could reasonably lead to delisting or suspension of the
Common Stock in the foreseeable future. “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.


 


(f)  
Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting
solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
hereby and thereby and that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate”
(as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner”
of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934,
as amended (the “1934 Act”)). The Company further acknowledges that no Buyer is acting as a financial advisor
or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents
and the transactions contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives or agents
in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such
Buyer’s purchase of the Securities. The Company further represents to each Buyer that the Company’s and each Subsidiary’s
decision to enter into the Transaction Documents to which it is a party has been based solely on the independent evaluation by
the Company, each Subsidiary and their respective representatives.


 






    	 	10	 



     


    

 


(g)  
No General Solicitation; Placement Agent Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any
Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning
of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any
placement agent fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its
investment advisor) relating to or arising out of the transactions contemplated hereby, including, without limitation, placement
agent fees payable to the Placement Agent in connection with the sale of the Securities. The fees and expenses of the Placement
Agent and any other financial advisors to be paid by the Company or any of its Subsidiaries are as set forth on Schedule 3(g)
attached hereto. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without
limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim. The Company acknowledges
that it has engaged the Placement Agent in connection with the sale of the Securities. Other than the Placement Agent or as set
forth on Schedule 3(g), neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection
with the offer or sale of the Securities.


 


(h)  
No Integrated Offering. Except as set forth in Schedule 3(h), none of the Company, its Subsidiaries or any of their affiliates,
nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers
to buy any security, under circumstances that would require registration of the issuance of any of the Securities under the 1933
Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities to require approval
of stockholders of the Company for purposes of the 1933 Act or under any applicable stockholder approval provisions, including,
without limitation, under the rules and regulations of the Principal Market. Except as set forth in Schedule 3(h), none of the
Company, its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would require
registration of the issuance of any of the Securities under the 1933 Act (other than pursuant to any other registration rights
agreement among the Company and any of the Buyers) or cause the offering of any of the Securities to be integrated with other
offerings of securities of the Company.


 


(i)  
Dilutive Effect. The Company understands and acknowledges that the number of Conversion Shares will increase in certain
circumstances. The Company further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of the
Notes in accordance with this Agreement and the Notes is, in each case, absolute and unconditional regardless of the dilutive
effect that such issuance may have on the ownership interests of other stockholders of the Company.


 


(j)  
Application of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison
pill (including, without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover
provision under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of
its incorporation or otherwise which is or could become applicable to any Buyer as a result of the transactions contemplated by
this Agreement, including, without limitation, the Company’s issuance of the Securities and any Buyer’s ownership
of the Securities. The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable
any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock
or a change in control of the Company or any of its Subsidiaries.


 






    	 	11	 



     


    

 


(k)  
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 Buyers or their respective 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 any of the Buyers which is not included in the SEC Documents (including, without limitation, information referred to in Section 2(e)
of this Agreement or 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 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 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 restate any of the Financial Statements or that there is any need for the Company to restate
any of the Financial Statements.


 






    	 	12	 



     


    

 


(l)  
Absence of Certain Changes. Except as set forth in the Company’s Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 2018, filed with the SEC on May 15, 2018, and the Company’s Current Report on Form 8-K filed with
the SEC on May 8, 2018, and as set forth in Schedule 3(l), 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 at the Closing, will not be Insolvent
(as defined below). For purposes of this Section 3(l), “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. Neither the Company nor any
of its Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business or in any transaction,
for which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital with which to
conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.


 


(m)  
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) could have a material adverse effect on any Buyer’s investment
hereunder or (iii) could have a Material Adverse Effect.


 






    	 	13	 



     


    

 


(n)  
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 Certificate 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, Certificate of Incorporation or certificate 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 Schedule 3(n), 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 following its regaining of compliance
with the continued listing criteria of the Principal Market as indicated in a compliance letter from the Nasdaq Stock Market on
November 28, 2016. 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.


 


(o)  
Foreign Corrupt Practices. Neither the Company, the Company’s subsidiary or any director, officer, agent, employee,
nor any other person acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”)
have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption
laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given,
promised to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official
capacity for any Governmental Entity to any political party or official thereof or to any candidate for political office (individually
and collectively, a “Government Official”) or to any person under circumstances where such Company Affiliate
knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised,
directly or indirectly, to any Government Official, for the purpose of:


 


(i)  
(A) influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official
to do or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government
Official to influence or affect any act or decision of any Governmental Entity, or


 


(ii)  
assisting the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company
or its Subsidiaries.


 






    	 	14	 



     


    

 


(p)  
Sarbanes-Oxley Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.


 


(q)  
Transactions With Affiliates. Except as set forth in Schedule 3(q), since January 1, 2015, 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, 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 (as defined in the
Notes)), 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).


 


(r)  
Equity Capitalization. 


 


(i)  
Definitions:


 


(A)  “Common
Stock” means (x) the Company’s shares of common stock, $0.01 par 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.


 


(B)  “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.01 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).


 






    	 	15	 



     


    

 


(ii)  
Authorized and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of
(A) Five Hundred Million (500,000,000) shares of Common Stock, of which, 222,924,649 are issued and outstanding as of the date
hereof and 222,924,649 of which are reserved for issuance pursuant to the Equity Incentive Plan, the Company’s outstanding
Convertible Securities (as defined below) and other obligations of the Company, and (B) Two Million (2,000,000) shares of Preferred
Stock, none of which are issued and outstanding before giving effect to the Closing. No 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.


 


(iii)  
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(r)(iii) sets forth the number of shares
of Common Stock that are (A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Notes)
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.


 


(iv)  
Existing Securities; Obligations. Except as disclosed in Schedule 3(r)(iv): (A) none of the Company’s or any Subsidiary’s
shares, interests or capital stock is subject to preemptive rights or any other similar rights or 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 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.


 






    	 	16	 



     


    

 


(v)  
Organizational Documents. The Company has furnished to the Buyers true, correct and complete copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate 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.


 


(s)  
Indebtedness and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed on Schedule 3(s),
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, 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;
(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. For purposes of this Agreement: (x) “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 (y) “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.
If the Company obtained the Stockholder Approval (as defined in the January Securities Purchase Agreement) immediately prior to
the date hereof, the conversion price of the January Notes as of the date hereof would be $0.345 (as adjusted for stock splits,
stock dividends, recapitalizations and similar events).


 



    	 	17	 



     


    

 


(t)  
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, whether of a civil or criminal nature or otherwise, in their capacities as such, except
as set forth in Schedule 3(t). 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.


 


(u)  
Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses
in which the Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.


 


(v)  
Employee Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or
employs any member of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No
executive officer (as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its
Subsidiaries has notified the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary
or otherwise terminate such officer’s employment with the Company or any such Subsidiary. To the Company’s knowledge,
no executive officer or other key employee of the Company or any of its Subsidiaries is, or is now expected to be, in violation
of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement, non-competition
agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each such executive
officer or other key employee (as the case may be) does not subject the Company or any of its Subsidiaries to any liability with
respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all federal, state, local and
foreign laws and regulations respecting labor, employment and employment practices and benefits, terms and conditions of employment
and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.


 






    	 	18	 



     


    

 


(w)  
Title.


 


(i)  
Real Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property,
facilities or other interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”)
owned by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject
to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for
(a) Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or
anticipated use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries
are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.


 


(ii)  
Fixtures and Equipment. Each of the Company and its Subsidiaries (as applicable) has good title to, or a valid leasehold
interest in, the tangible personal property, equipment, improvements, fixtures, and other personal property and appurtenances
that are used by the Company or its Subsidiary in connection with the conduct of its business (the “Fixtures and Equipment”).
The Fixtures and Equipment are structurally sound, are in good operating condition and repair, are adequate for the uses to which
they are being put, are not in need of maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient
for the conduct of the Company’s and/or its Subsidiaries’ businesses (as applicable) in the manner as conducted prior
to the Closing. Each of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear of all Liens except
for (a) liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present
or anticipated use of the property subject thereto.


 


(x)  
Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks,
trade names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications
and registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses
as now conducted. None of the Company or its Subsidiaries owns any patents. Except as set forth in Schedule 3(x)(ii), none of
the Company’s Intellectual Property Rights have expired or terminated or have been abandoned or are expected to expire or
terminate or are expected to be abandoned, within three years from the date of this Agreement. The Company does not have any knowledge
of any infringement by the Company or its Subsidiaries of Intellectual Property Rights of others. There is no claim, action or
proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries, being threatened, against the
Company or any of its Subsidiaries regarding its Intellectual Property Rights. Neither the Company nor any of its Subsidiaries
is aware of any facts or circumstances that could reasonably be expected to give rise to any of the foregoing infringements or
claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their Intellectual Property Rights.


 






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(y)  
Environmental Laws. (i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as
defined below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws
to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or
approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all federal,
state, local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation,
ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes
(collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations,
codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans
or regulations issued, entered, promulgated or approved thereunder.


 


(ii)  
No Hazardous Materials:


 


(A)  
have been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries in violation of any
Environmental Laws; or


 


(B)  
to the Company’s knowledge, are present on, over, beneath, in or upon an Real Property or any portion thereof in quantities
that would constitute a violation of any Environmental Laws. To the Company’s knowledge, no prior use by the Company or
any of its Subsidiaries of any Real Property has occurred that violates any Environmental Laws, which violation would have a material
adverse effect on the business of the Company or any of its Subsidiaries.


 


(iii)  
Neither the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed
of or otherwise located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos
and polychlorinated biphenyls.


 


(iv)  
None of the Real Property are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related
Liens.


 


(z)  
Subsidiary Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations
imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the
Company or such Subsidiary.


 






    	 	20	 



     


    

 


(aa)  
Tax Status. Except as would not have a Material Adverse Effect, the Company and each of its Subsidiaries (i) has timely
made or filed all foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction
to which it is subject, (ii) has timely paid all taxes and other governmental assessments and charges that are material in amount,
shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and (iii)
has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Company and its Subsidiaries know of no basis for any such claim. The Company
is not operated in such a manner as to qualify as a passive foreign investment company, as defined in Section 1297 of the Internal
Revenue Code of 1986, as amended (the “Code”).


 


(bb)  
Internal Accounting and Disclosure Controls. The Company and each of its Subsidiaries maintains internal control over financial
reporting (as such term is defined in Rule 13A-25(f) under the 1934 Act) that is effective to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, including that (i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is permitted
only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and
liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with
respect to any difference. As reported in its Annual Report on Form 10-K for the year ended December 31, 2017 and its Quarterly
Report on Form 10-Q for the quarterly period ended March 31, 2018, the Company does not currently maintain disclosure controls
and procedures (as such term is defined in Rule 13A-25(e) under the 1934 Act) that are effective in ensuring that information
required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized
and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits
under the 1934 Act is accumulated and communicated to the Company’s management, including its principal executive officer
or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure.
Except as disclosed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2017 and Quarterly Report
on Form 10-Q for the quarterly period ended March 31, 2018, neither the Company nor any of its Subsidiaries has received any notice
or correspondence from any accountant, Governmental Entity or other Person relating to any potential material weakness or significant
deficiency in any part of the internal controls over financial reporting (as such term is defined in Rule 13A-25(f) of the Exchange
Act) of the Company or any of its Subsidiaries.


 


(cc)  
Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any
of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in
its 1934 Act filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.


 






    	 	21	 



     


    

 


(dd)  
Investment Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment
company,” an affiliate of an “investment company,” a company controlled by an “investment company”
or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment
company” as such terms are defined in the Investment Company Act of 1940, as amended.


 


(ee)  
Acknowledgement Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that (i) following
the public disclosure of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof, none
of the Buyers have been asked by the Company or any of its Subsidiaries to agree, nor has any Buyer agreed with the Company or
any of its Subsidiaries, to desist from effecting any transactions in or with respect to (including, without limitation, purchasing
or selling, long and/or short) any securities of the Company, or “derivative” securities based on securities issued
by the Company or to hold any of the Securities for any specified term; (ii) any Buyer, and counterparties in “derivative”
transactions to which any such Buyer is a party, directly or indirectly, presently may have a “short” position in
the Common Stock which was established prior to such Buyer’s knowledge of the transactions contemplated by the Transaction
Documents; and (iii) each Buyer shall not be deemed to have any affiliation with or control over any arm’s length counterparty
in any “derivative” transaction. The Company further understands and acknowledges that following the public disclosure
of the transactions contemplated by the Transaction Documents pursuant to the 8-K Filing (as defined below) one or more Buyers
may engage in hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable
shares of Common Stock) at various times during the period that the Securities are outstanding, including, without limitation,
during the periods that the value and/or number of the Conversion Shares deliverable with respect to the Notes are being determined
and such hedging and/or trading activities, if any, can reduce the value of the existing stockholders’ equity interest in
the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that
such aforementioned hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable
shares of Common Stock) do not constitute a breach of this Agreement, the Notes or any other Transaction Document or any of the
documents executed in connection herewith or therewith.


 


(ff)  
Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person
acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of
the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities (other
than the Placement Agent or as identified on Schedule 3(g)), (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company or any of its Subsidiaries or (iv) paid or agreed to pay any Person for
research services with respect to any securities of the Company or any of its Subsidiaries.


 


(gg)  
U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long
as any of the Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning
of Section 897 of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.


 






    	 	22	 



     


    

 


(hh)  
Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required
to be paid in connection with the issuance, sale and transfer of the Securities to be sold to each Buyer 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.


 


(ii)  
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of
1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%)
or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


(jj)  
Shell Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).


 


(kk)  
Illegal or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the
best of the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors,
employees, agents or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise
with which the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized
any payment, contribution or gift of money, property, or services, whether or not in contravention of applicable law, (i) as a
kickback or bribe to any Person or (ii) to any political organization, or the holder of or any aspirant to any elective or appointive
public office except for personal political contributions not involving the direct or indirect use of funds of the Company or
any of its Subsidiaries.


 


(ll)  
Money Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot
Act of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation,
the laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including,
but not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations
contained in 31 CFR, Subtitle B, Chapter V.


 


(mm)  
Management. Except as set forth in Schedule 3(mm) hereto, during the past five year period, no current or former officer
or director or, to the knowledge of the Company, no current ten percent (10%) or greater stockholder of the Company or any of
its Subsidiaries has been the subject of:


 


(i)  
a petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal
agent or similar officer for such Person, or any partnership in which such person was a general partner at or within two years
before the filing of such petition or such appointment, or any corporation or business association of which such person was an
executive officer at or within two years before the time of the filing of such petition or such appointment;


 






    	 	23	 



     


    

 


(ii)  
a conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do
not relate to driving while intoxicated or driving under the influence);


 


(iii)  
any order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently
or temporarily enjoining any such person from, or otherwise limiting, the following activities:


 


(1)  
Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker,
leverage transaction merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated
person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated
person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in
or continuing any conduct or practice in connection with such activity;


 


(2)  
Engaging in any particular type of business practice; or


 


(3)  
Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation
of securities laws or commodities laws;


 


(iv)  
any order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise
limiting for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph,
or to be associated with persons engaged in any such activity;


 


(v)  
a finding by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities
law, regulation or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently
reversed, suspended or vacated; or


 


(vi)  
a finding by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated
any federal commodities law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or
vacated.


 


(nn)  
Stock Option Plans. The Company has one equity incentive plan from which up to 3,000,000 shares of Common Stock (subject
to proportionate adjustment for any stock split or combination or similar recapitalization event) may be granted to eligible recipients
pursuant to awards thereunder, namely the Helios and Matheson Analytics Inc. 2014 Equity Incentive Plan (as amended, the “Equity
Incentive Plan”). The number of shares of Common Stock issuable pursuant to the Equity Incentive Plan is subject to
annual increases as set forth in the Equity Incentive Plan.


 






    	 	24	 



     


    

 


(oo)  
No Disagreements with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the
Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s
ability to perform any of its obligations under any of the Transaction Documents. In addition, on or prior to the date hereof,
the Company has no reason to believe that it will need to restate any such financial statements or any part thereof.


 


(pp)  
No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under
the 1933 Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated issuer,
any director, executive officer, other officer of the Company participating in the offering contemplated hereby, any beneficial
owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor
any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with the Company in any capacity at the time of
sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject
to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “Disqualification
Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent
applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Buyers a copy of any disclosures provided
thereunder.


 


(qq)  
Other Covered Persons. The Company is not aware of any Person (other than the Placement Agent or as described on Schedule
3(g)) that has been or will be paid (directly or indirectly) remuneration for solicitation of Buyers or potential purchasers in
connection with the sale of any Regulation D Securities.


 


(rr)  
No Additional Agreements. The Company does not have any agreement or understanding with any Buyer with respect to the transactions
contemplated by the Transaction Documents other than as specified in the Transaction Documents.


 


(ss)  
Public Utility Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate”
of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.


 


(tt)  
Federal Power Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility”
under the Federal Power Act, as amended.


 


(uu)  
Ranking of Notes. No Indebtedness of the Company, at the Closing, will be senior to, or pari passu with, the Notes
in right of payment, whether with respect to payment or redemptions, interest, damages, upon liquidation or dissolution or otherwise,
other than the November Notes and the January Notes (except with respect to the Collateral (as defined in the Notes) securing
the Restricted Principal under the Notes).


 






    	 	25	 



     


    

 


(vv)  
Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers
or their agents or counsel with any information that constitutes or could 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 Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing
representations in effecting transactions in securities of the Company. 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. To the Company’s knowledge,
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 disclosed. The Company acknowledges and agrees that no Buyer makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.


 


4.  
COVENANTS.


 


(a)  
Best Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to
be satisfied by it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of
the covenants hereunder and conditions to be satisfied by it as provided in Section 7 of this Agreement.


 


(b)  
Form D and Blue Sky. The Company shall file a Form D with respect to the Securities as required under Regulation D and
to provide a copy thereof to each Buyer promptly after such filing. The Company shall, on or before the Closing Date, take such
action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities
for sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of
the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action
so taken to the Buyers on or prior to the Closing Date. Without limiting any other obligation of the Company under this Agreement,
the Company shall timely make all filings and reports relating to the offer and sale of the Securities required under all applicable
securities laws (including, without limitation, all applicable federal securities laws and all applicable “Blue Sky”
laws), and the Company shall comply with all applicable foreign, federal, state and local laws, statutes, rules, regulations and
the like relating to the offering and sale of the Securities to the Buyers.


 


(c)  
Reporting Status. Until the date on which the Buyers shall have sold all of the Underlying Securities (the “Reporting
Period”), the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and
the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the
rules and regulations thereunder would no longer require or otherwise permit such termination. The Company shall use reasonable
best efforts to maintain its eligibility to register the Underlying Securities for resale by the Buyers on Form S-3, provided
that Buyer acknowledges that such eligibility depends on the Company’s continued listing on the Principal Market.


 






    	 	26	 



     


    

 


(d)  
Use of Proceeds. The Company shall use the gross proceeds (less reasonable fees and expenses of counsel to the Company
and the reasonable fees and expenses of the Placement Agent) from the sale of the Securities as set forth on Schedule 4(d) and
for general corporate purposes, but not, directly or indirectly, for, except as set forth on Schedule 4(d) (or as otherwise required
under the November Notes or the January Notes): (i) the satisfaction of any indebtedness of the Company or any of its Subsidiaries,
(ii) the redemption or repurchase of any securities of the Company or any of its Subsidiaries other than the Series A Preferred
Stock in accordance with the Certificate of Designations, or (iii) the settlement of any outstanding litigation other than pending
litigation disclosed on Schedule 3(t).


 


(e)  
Financial Information. The Company agrees to send the following to each holder of Notes (each, an “Investor”)
during the Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through
the EDGAR system, within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K
and Quarterly Reports on Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders’
equity statements and/or cash flow statements for any period other than annual, any Current Reports on Form 8-K and any registration
statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with
the SEC through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire or Globe
Newswire), on the same day as the release thereof, facsimile or PDF copies of all press releases issued by the Company or any
of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR, copies of any notices and other information
made available or given to the stockholders of the Company generally, contemporaneously with the making available or giving thereof
to the stockholders.


 


(f)  
Listing. The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the
Underlying Securities upon each national securities exchange and automated quotation system, if any, upon which the Common Stock
is then listed or designated for quotation (as the case may be) (subject to official notice of issuance) and shall maintain such
listing or designation for quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms
of the Transaction Documents on such national securities exchange or automated quotation system. The Company shall maintain the
Common Stock’s listing or authorization for quotation (as the case may be) on the Principal Market, The New York Stock Exchange,
the NYSE American, the Nasdaq Global Market or the Nasdaq Global Select Market (each, an “Eligible Market”).
Neither the Company nor any of its Subsidiaries shall take any action which could be reasonably expected to result in the delisting
or suspension of the Common Stock on an Eligible Market. The Company shall pay all fees and expenses in connection with satisfying
its obligations under this Section 4(f). “Underlying Securities” means the (i) the Conversion Shares and (ii)
any capital stock of the Company issued or issuable with respect to the Notes, including, without limitation, (1) as a result
of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise and (2) shares of capital stock of
the Company into which the shares of Common Stock are converted or exchanged and shares of capital stock of a Successor Entity
(as defined in the Notes) into which the shares of Common Stock are converted or exchanged, in each case, without regard to any
limitations on conversion of the Notes.


 






    	 	27	 



     


    

 


(g)  
Fees. The Company shall reimburse Hudson Bay Master Fund Ltd. (the “Hudson Bay”) for all reasonable
costs and expenses (whether the transaction is consummated or not) incurred by it or its affiliates in connection with the structuring,
documentation, negotiation and closing of the transactions contemplated by the Transaction Documents (including, without limitation,
as applicable, all reasonable legal fees of outside counsel and disbursements of Kelley Drye & Warren LLP, counsel to Hudson
Bay, and Richards, Layton & Finger, P.A., special Delaware counsel to Hudson Bay, and any other reasonable fees and expenses
in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction
Documents and due diligence and regulatory filings in connection therewith) (the “Transaction Expenses”) and
shall be withheld by Hudson Bay from its Purchase Price at the Closing; provided, that the Company shall promptly reimburse Kelley
Drye & Warren LLP and Richards, Layton & Finger, P.A., as applicable, on demand for all Transaction Expenses not so reimbursed
through such withholding at the Closing. The Company shall be responsible for the payment of any placement agent fees, financial
advisory fees, transfer agent fees, DTC (as defined below) fees or broker’s commissions (other than for Persons engaged
by any Buyer) relating to or arising out of the transactions contemplated hereby (including, without limitation, any fees or commissions
payable to the Placement Agent, who is the Company’s only placement agent in connection with the transactions contemplated
by this Agreement). The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without
limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any
such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses
in connection with the sale of the Securities to the Buyers.


 


(h)  
Pledge of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and
agrees that the Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing
arrangement that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment
of the Securities hereunder, and no Investor effecting a pledge of Securities shall be required to provide the Company with any
notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including,
without limitation, Section 2(g) hereof; provided that an Investor and its pledgee shall be required to comply with the provisions
of Section 2(g) hereof in order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees
to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of
the Securities to such pledgee by a Buyer.


 


(i)  
Disclosure of Transactions and Other Material Information.


 


(i)  
Disclosure of Transaction. On or before 9:30 a.m., New York time, on the date of this Agreement, the Company shall file
a Current Report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in
the form required by the 1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement
(and all schedules to this Agreement), the form of Certificate of Designations, the form of Notes, the form of Investor Note,
the form of Guaranty, the form of Voting Agreement, the form of Voting and Lockup Agreement, the form of Master Netting Agreement
and the form of Note Purchase Agreement) (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 to any of the
Buyers by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection
with the transactions contemplated by the Transaction Documents. 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, 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 Buyers or any of their affiliates, on the other hand, shall terminate.


 






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(ii)  
Limitations on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its
and their respective officers, directors, employees and agents not to, provide any Buyer with any material, non-public information
regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of such
Buyer (which may be granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing
covenants, or any of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment
of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right
to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material,
non-public information, as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their
respective officers, directors, employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees, affiliates, stockholders or agents, for any such disclosure.
To the extent that the Company delivers any material, non-public information to a Buyer without such Buyer’s consent, the
Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty not
to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries
nor any Buyer 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 any Buyer, to make any press release or other
public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith
and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) each Buyer 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 applicable Buyer (which may be granted or withheld in such Buyer’s sole discretion), the Company shall not
(and shall cause each of its Subsidiaries and affiliates to not) disclose the name of such Buyer in any filing, announcement,
release or otherwise, except as such disclosure may be required by applicable law including, without limitation, in the 8-K Filing.
Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise
be true, the Company expressly acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer
after the date hereof in a written definitive and binding agreement executed by the Company and such particular Buyer (it being
understood and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality with respect
to, or a duty not to trade on the basis of, any material, non-public information regarding the Company or any of its Subsidiaries.
Each Buyer further acknowledges that the Company shall not be deemed to violate this Section 4(i) by disclosing the name of any
Buyer that beneficially owns more than 4.99% of the Common Stock of the Company in accordance with the disclosure made by such
Buyer in any Schedule 13D or Schedule 13G filed by such Buyer with the SEC.


 






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(iii)  
Other Confidential Information. Disclosure Failures; Disclosure Delay Payments. In addition to other remedies set forth
in this Section 4(i), and without limiting anything set forth in any other Transaction Document, at any time after the Closing
Date if the Company, any of its Subsidiaries, or any of their respective officers, directors, employees or agents, provides any
Buyer with material non-public information relating to the Company or any of its Subsidiaries (each, the “Confidential
Information”), the Company shall, on or prior to the applicable Required Disclosure Date (as defined below), publicly
disclose such Confidential Information on a Current Report on Form 8-K or otherwise (each, a “Disclosure”).
From and after such Disclosure, the Company shall have disclosed all Confidential Information provided to such Buyer by the Company
or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective upon such Disclosure, the Company acknowledges and agrees that
any and all confidentiality or similar obligations under any agreement, 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
Buyers or any of their affiliates, on the other hand, shall terminate. In the event that the Company fails to effect such Disclosure
on or prior to the Required Disclosure Date and such Buyer shall have possessed Confidential Information for at least ten (10)
consecutive Trading Days (each, a “Disclosure Failure”), then, as partial relief for the damages to such Buyer
by reason of any such delay in, or reduction of, its ability to buy or sell shares of Common Stock after such Required Disclosure
Date (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to such
Buyer an amount in cash equal to the greater of (I) two percent (2%) of the aggregate Purchase Price and (II) the applicable Disclosure
Restitution Amount, on each of the following dates (each, a “Disclosure Delay Payment Date”): (i) on the date
of such Disclosure Failure and (ii) on every thirty (30) day anniversary such Disclosure Failure until the earlier of (x) the
date such Disclosure Failure is cured and (y) such time as all such non-public information provided to such Buyer shall cease
to be Confidential Information (as evidenced by a certificate, duly executed by an authorized officer of the Company to the foregoing
effect) (such earlier date, as applicable, a “Disclosure Cure Date”). Following the initial Disclosure Delay
Payment for any particular Disclosure Failure, without limiting the foregoing, if a Disclosure Cure Date occurs prior to any thirty
(30) day anniversary of such Disclosure Failure, then such Disclosure Delay Payment (prorated for such partial month) shall be
made on the third (3rd) Business Day after such Disclosure Cure Date. The payments to which an Investor shall be entitled pursuant
to this Section 4(l)(iii) are referred to herein as “Disclosure Delay Payments.” In the event the Company fails
to make Disclosure Delay Payments in a timely manner in accordance with the foregoing, such Disclosure Delay Payments shall bear
interest at the rate of two percent (2%) per month (prorated for partial months) until paid in full.


 






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(iv)  
For the purpose of this Agreement the following definitions shall apply:


 


(1)  
“Disclosure Failure Market Price” means, as of any Disclosure Delay Payment Date, the price computed as the
quotient of (I) the sum of the five (5) highest VWAPs (as defined in the Notes) of the Common Stock during the applicable Disclosure
Restitution Period (as defined below), divided by (II) five (5) (such period, the “Disclosure Failure Measuring Period”).
All such determinations to be appropriately adjusted for any share dividend, share split, share combination, reclassification
or similar transaction that proportionately decreases or increases the Common Stock during such Disclosure Failure Measuring Period.


 


(2)  
“Disclosure Restitution Amount” means, as of any Disclosure Delay Payment Date, the product of (x) difference
of (I) the Disclosure Failure Market Price less (II) the lowest purchase price, per share of Common Stock, of any Common Stock
issued or issuable to such Buyer pursuant to this Agreement or any other Transaction Documents, multiplied by (y) 10% of the aggregate
daily dollar trading volume (as reported on Bloomberg (as defined in the Notes)) of the Common Stock on the Principal Market for
each Trading Day (as defined in the Notes) either (1) with respect to the initial Disclosure Delay Payment Date, during the period
commencing on the applicable Required Disclosure Date through and including the Trading Day immediately prior to the initial Disclosure
Delay Payment Date or (2) with respect to each other Disclosure Delay Payment Date, during the period commencing the immediately
preceding Disclosure Delay Payment Date through and including the Trading Day immediately prior to such applicable Disclosure
Delay Payment Date (such applicable period, the “Disclosure Restitution Period”).


 


(3)  
“Required Disclosure Date” means (x) if such Buyer authorized the delivery of such Confidential Information,
either (I) if the Company and such Buyer have mutually agreed upon a date (as evidenced by an e-mail or other writing) of Disclosure
of such Confidential Information, such agreed upon date or (II) otherwise, the seventh (7th) calendar day after the
date such Buyer first received any Confidential Information or (y) if such Buyer did not authorize the delivery of such Confidential
Information, the first (1st) Business Day after such Buyer’s receipt of such Confidential Information.


 






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(j)  
Reservation of Shares. So long as any of the Notes remain outstanding, either (x) from the Closing Date until, but not
including, the second (2nd) Business Day after such time as the Company shall have initially obtained the consent of its stockholders
after the Closing Date to either (I) increase the authorized shares of the Company or (II) effect a reverse stock split of the
Company (such consent, the “Authorized Share Increase Consent”, and the date such Authorized Share Increase
Consent is obtained by the Company, the “Authorized Share Increase Consent Date”), the Company shall at all
times reserve zero (0) shares of Common Stock for issuance upon conversion of the Notes or (y) from and after the second (2nd)
Business Day after the Authorized Share Increase Consent Date, the Company shall take all action necessary to at all times have
authorized, and reserved for the purpose of issuance, no less than 200% of the maximum number of shares of Common Stock issuable
upon conversion of all the Notes then outstanding (assuming for purposes hereof that (i) the Notes are convertible at the Alternate
Conversion Event of Default Price as of the applicable time of determination, (ii) interest on the Notes shall accrue through
the second anniversary of the Closing Date and will be converted in shares of Common Stock at a conversion price equal to the
Alternate Conversion Event of Default Price assuming an Alternate Conversion Date as of the applicable time of determination and
(iii) any such conversion shall not take into account any limitations on the conversion of the Notes set forth in the Notes (collectively,
the “Required Reserve Amount”)); provided that at no time shall the number of shares of Common Stock reserved
pursuant to this Section 4(j) be reduced other than proportionally in connection with any conversion, exercise and/or redemption,
as applicable of Notes. If at any time the number of shares of Common Stock authorized and reserved for issuance is not sufficient
to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve a
sufficient number of shares, including, without limitation, calling a special meeting of stockholders to authorize additional
shares to meet the Company’s obligations pursuant to the Transaction Documents, in the case of an insufficient number of
authorized shares, obtain stockholder approval of an increase in such authorized number of shares, and voting the management shares
of the Company in favor of an increase in the authorized shares of the Company to ensure that the number of authorized shares
is sufficient to meet the Required Reserve Amount.


 


(k)  
Conduct of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance
or regulation of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually
or in the aggregate, in a Material Adverse Effect.


 


(l)  
Additional Issuance of Securities. The Company agrees that for the period commencing on the date hereof and ending on,
and including, June 21, 2018 (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall
directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance,
offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related
security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated
under the 1933 Act), any Convertible Securities, any debt, any preferred stock or any purchase rights) (any such issuance, offer,
sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter and whether
pursuant to a public or private offering) is referred to as a “Subsequent Placement”). Notwithstanding the
foregoing, this Section 4(l) shall not apply in respect of the issuance of Excluded Securities (as defined in the Notes).


 


(m)  
Dilutive Issuances. For so long as any Notes or Preferred Shares remain outstanding, the Company shall not, in any manner,
enter into or affect any Dilutive Issuance (as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company
to be required to issue upon conversion of any Notes any shares of Common Stock in excess of that number of shares of Common Stock
which the Company may issue upon conversion of the Notes without breaching the Company’s obligations under the rules or
regulations of the Principal Market.


 






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(n)  
Passive Foreign Investment Company. The Company shall conduct its business, and shall cause its Subsidiaries to conduct
their respective businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign
investment company within the meaning of Section 1297 of the Code.


 


(o)  
Restriction on Redemption and Cash Dividends. So long as any Notes or Preferred Shares are outstanding, the Company shall
not, directly or indirectly, redeem, or declare or pay any cash dividend or distribution on, any securities of the Company other
than the Securities, the January Notes and the November Notes pursuant to the terms thereof without the prior express written
consent of the Required Holders.


 


(p)  
Corporate Existence. So long as any Buyer beneficially owns any Notes or Preferred Shares, the Company shall not be party
to any Fundamental Transaction (as defined in the Notes) unless the Company is in compliance with the applicable provisions governing
Fundamental Transactions set forth in the Notes and in the Certificate of Designations.


 


(q)  
Stock Splits. Until no Notes or Preferred Shares remain outstanding, the Company shall not effect any stock combination,
reverse stock split or other similar transaction (or make any public announcement or disclosure with respect to any of the foregoing)
without the prior written consent of the Required Holders (as defined below), except as required by an Eligible Market to provide
for the eligibility or continued eligibility of the Common Stock for listing or quotation on such market.


 


(r)  
Conversion Procedures. Each of the form of Conversion Notice (as defined in the Notes) included in the Notes set forth
the totality of the procedures required of the Buyers in order to convert the Notes. Except as provided in Section 5(d), no additional
legal opinion, other information or instructions shall be required of the Buyers to convert their Notes. The Company shall honor
conversions of the Notes and shall deliver the Conversion Shares in accordance with the terms, conditions and time periods set
forth in the Notes.


 


(s)  
Regulation M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the
distribution of the Securities contemplated hereby.


 


(t)  
General Solicitation. None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act) or any
person acting on behalf of the Company or such affiliate will solicit any offer to buy or offer or sell the Securities by means
of any form of general solicitation or general advertising within the meaning of Regulation D, including: (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or
radio; and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.


 


(u)  
Integration. None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting
on behalf of the Company or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in the 1933 Act) which will be integrated with the sale of the Securities in a manner which would
require the registration of the Securities under the 1933 Act and the Company will take all action that is appropriate or necessary
to assure that its offerings of other securities will not be integrated for purposes of the 1933 Act, with the issuance of Securities
contemplated hereby.


 






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(v)  
Notice of Disqualification Events. The Company will notify the Buyers in writing, prior to the Closing Date of (i) any
Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a
Disqualification Event relating to any Issuer Covered Person.


 


(w)  
Stockholder Approval. The Company shall provide each stockholder entitled to vote at a special meeting of stockholders
of the Company (the “Stockholder Meeting”), which shall be promptly called and held not later than October
18, 2018 (the “Stockholder Meeting Deadline”), a proxy statement, in a form reasonably acceptable to the Buyers
and Kelley Drye & Warren LLP, at the expense of the Company, with the Company obligated to reimburse the expenses of Kelley
Drye & Warren LLP incurred in connection therewith, soliciting each such stockholder’s affirmative vote at the Stockholder
Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the issuance of the Notes and
Conversion Shares (as defined therein) in accordance with Nasdaq Listing Rule 5635 (the “Stockholder Approval”,
and the date the Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company shall
use its reasonable best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board of Directors
of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to seek to
obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable best efforts the
Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder
Meeting to be held on or prior to December 31, 2018. If, despite the Company’s reasonable best efforts the Stockholder Approval
is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held
semi-annually thereafter until such Stockholder Approval is obtained.


 


(x)   Stock
Split Stockholder Approval. The Company shall provide each stockholder entitled to vote at a special meeting of
stockholders of the Company (the “Stock Split Stockholder Meeting”), which shall be promptly called and
held not later than July 18, 2018 (the “Stock Split Stockholder Meeting Deadline”), a proxy statement, in
a form reasonably acceptable to the Buyers and Kelley Drye & Warren LLP, at the expense of the Company, with the Company
obligated to reimburse the expenses of Kelley Drye & Warren LLP incurred in connection therewith, soliciting each such
stockholder’s affirmative vote at the Stock Split Stockholder Meeting for approval of resolutions
(“Stock Split Stockholder Resolutions”) providing for the approval of a reverse stock split of the Common
Stock of the Company of a ratio of 1 share-for-2 shares up to a ratio of 1 share-for-250 shares (the “Stock Split
Stockholder Approval”, and the date the Stock Split Stockholder Approval is obtained, the “Stock Split
Stockholder Approval Date”), and the Company shall use its reasonable best efforts to solicit its
stockholders’ approval of such resolutions and to cause the Board of Directors of the Company to recommend to the
stockholders that they approve such resolutions. The Company shall be obligated to seek to obtain the Stock Split Stockholder
Approval by the Stock Split Stockholder Meeting Deadline. If, despite the Company’s reasonable best efforts the Stock
Split Stockholder Approval is not obtained on or prior to the Stock Split Stockholder Meeting Deadline, the Company shall
cause an additional Stock Split Stockholder Meeting to be held on or prior to October 18, 2018. If, despite the
Company’s reasonable best efforts the Stock Split Stock Split Stockholder Approval is not obtained after such
subsequent stockholder meetings, the Company shall cause an additional Stock Split Stockholder Meeting to be held
semi-annually thereafter until such Stock Split Stockholder Approval is obtained.


 






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(y)  
No Waiver of Voting Agreements or Voting and Lockup Agreements. The Company shall not amend, waive or modify any provision
of any of the Voting Agreements (as defined below) or any of the Voting and Lockup Agreements (as defined below).


 


(z)   Public
Information. At any time during the period commencing from the six (6) month anniversary of the Closing Date and ending
at such time that all of the Securities, if a registration statement is not available for the resale of all of the
Securities, may be sold without restriction or limitation pursuant to Rule 144 and without the requirement to be in
compliance with Rule 144(c)(1), if the Company shall (i) fail for any reason to satisfy the requirements of Rule 144(c)(1),
including, without limitation, the failure to satisfy the current public information requirement under Rule 144(c) or (ii) if
the Company becomes an issuer described in Rule 144(i)(1)(i), and the Company shall fail to satisfy any condition set forth
in Rule 144(i)(2) (a “Current Public Information Failure”) then, as partial relief for the damages to any
holder of Securities by reason of any such delay in or reduction of its ability to sell the Securities (which remedy shall
not be exclusive of any other remedies available at law or in equity), the Company shall pay to each such holder an amount in
cash equal to two percent (2.0%) of the aggregate Cash Purchase Price of such holder's Securities on the day of a Current
Public Information Failure and on every thirtieth day (pro rated for periods totaling less than thirty days) thereafter until
the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such Current Public
Information Failure no longer prevents a holder of Securities from selling such Securities pursuant to Rule 144 without any
restrictions or limitations. The payments to which a holder shall be entitled pursuant to this Section 4(z) are referred to
herein as “Current Public Information Failure Payments.” Current Public Information Failure Payments shall
be paid on the earlier of (I) the last day of the calendar month during which such Current Public Information Failure
Payments are incurred and (II) the third Business Day after the event or failure giving rise to the Current Public
Information Failure Payments is cured. In the event the Company fails to make Current Public Information Failure Payments in
a timely manner, such Current Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated
for partial months) until paid in full.


 


(aa)  
Closing Documents. On or prior to fourteen (14) calendar days after the Closing Date, the Company agrees to deliver, or
cause to be delivered, electronically to each Buyer and Kelley Drye & Warren LLP a complete closing set of the executed Transaction
Documents, Securities and any other document required to be delivered to any party pursuant to Section 7 hereof or otherwise
(which may be photocopies or pdf versions of executed copies).


 






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5.  
REGISTER; TRANSFER AGENT INSTRUCTIONS; LEGEND.


 


(a)  
Register. The Company shall maintain at its principal executive offices (or such other office or agency of the Company
as it may designate by notice to each holder of Securities), a register for the Preferred Shares in which the Company shall record
the name and address of the Person in whose name the Preferred Shares have been issued (including the name and address of each
transferee) and the aggregate number of Preferred Shares held by such Person and a register for the Notes in which the Company
shall record the name and address of the Person in whose name the Notes have been issued (including the name and address of each
transferee), the principal amount of the Notes held by such Person and the number of Conversion Shares issuable pursuant to the
terms of the Notes. The Company shall keep the register open and available at all times during business hours for inspection of
any Buyer or its legal representatives.


 


(b)  
Transfer Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent
transfer agent (as applicable, the “Transfer Agent”) in a form acceptable to each of the Buyers (the “Irrevocable
Transfer Agent Instructions”) to issue certificates or credit shares to the applicable balance accounts at The Depository
Trust Company (“DTC”), registered in the name of each Buyer or its respective nominee(s), for the Conversion
Shares in such amounts as specified from time to time by each Buyer to the Company upon conversion of the Notes. The Company represents
and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5(b),
and stop transfer instructions to give effect to Section 2(g) hereof, will be given by the Company to its transfer agent with
respect to the Securities, and that the Securities shall otherwise be freely transferable on the books and records of the Company,
as applicable, to the extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment
or transfer of the Securities in accordance with Section 2(g), the Company shall permit the transfer and shall promptly instruct
its transfer agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name and
in such denominations as specified by such Buyer to effect such sale, transfer or assignment. In the event that such sale, assignment
or transfer involves Conversion Shares sold, assigned or transferred pursuant to an effective registration statement or in compliance
with Rule 144, the transfer agent shall issue such shares to such Buyer, assignee or transferee (as the case may be) without any
restrictive legend in accordance with Section 5(d) below. The Company acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach of
its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies,
to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing
economic loss and without any bond or other security being required. The Company shall cause its counsel to issue the legal opinion
referred to in the Irrevocable Transfer Agent Instructions to the Company’s transfer agent from and after the Applicable
Date. Any fees (with respect to the transfer agent, counsel to the Company or otherwise) associated with the issuance of such
opinion or the removal of any legends on any of the Securities shall be borne by the Company. “Applicable Date” means
the first date on which all of the Underlying Securities are eligible to be resold by the Buyers pursuant to Rule 144 (or, if
a Current Public Information Failure has occurred and is continuing, such later date after which the Company has cured such Current
Public Information Failure).


 






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(c)  
Legends. Each Buyer understands that the Securities have been issued (or will be issued in the case of the Conversion Shares)
pursuant to an exemption from registration or qualification under the 1933 Act and applicable state securities laws, and except
as set forth below, the Securities shall bear any legend as required by the “blue sky” laws of any state and a restrictive
legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):


 


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


 


(d)  
Removal of Legends. Certificates evidencing Securities shall not be required to contain the legend set forth in Section 5(c)
above or any other legend (i) while a registration statement covering the resale of such Securities is effective under the 1933
Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor is not an affiliate of the Company),
(iii) if such Securities are eligible to be sold, assigned or transferred under Rule 144 (provided that a Buyer provides the Company
with reasonable assurances that such Securities are eligible for sale, assignment or transfer under Rule 144 which shall not include
an opinion of Buyer’s counsel), (iv) in connection with a sale, assignment or other transfer (other than under Rule 144),
provided that such Buyer provides the Company with an opinion of counsel to such Buyer, in a generally acceptable form, to the
effect that such sale, assignment or transfer of the Securities may be made without registration under the applicable requirements
of the 1933 Act or (v) if such legend is not required under applicable requirements of the 1933 Act (including, without limitation,
controlling judicial interpretations and pronouncements issued by the SEC). If a legend is not required pursuant to the foregoing,
the Company shall no later than two (2) Trading Days (or such earlier date as required pursuant to the 1934 Act or other applicable
law, rule or regulation for the settlement of a trade initiated on the date such Buyer delivers such legended certificate representing
such Securities to the Company) following the delivery by a Buyer to the Company or the transfer agent (with notice to the Company)
of a legended certificate representing such Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise
in form necessary to affect the reissuance and/or transfer, if applicable), together with any other deliveries from such Buyer
as may be required above in this Section 5(d), as directed by such Buyer, either: (A) provided that the Company’s transfer
agent is participating in the DTC Fast Automated Securities Transfer Program and such Securities are Conversion Shares, credit
the aggregate number of shares of Common Stock to which such Buyer shall be entitled to such Buyer’s or its designee’s
balance account with DTC through its Deposit/Withdrawal at Custodian system or (B) if the Company’s transfer agent is not
participating in the DTC Fast Automated Securities Transfer Program, issue and deliver (via reputable overnight courier) to such
Buyer, a certificate representing such Securities that is free from all restrictive and other legends, registered in the name
of such Buyer or its designee (the date by which such credit is so required to be made to the balance account of such Buyer’s
or such Buyer’s designee with DTC or such certificate is required to be delivered to such Buyer pursuant to the foregoing
is referred to herein as the “Required Delivery Date”, and the date such shares of Common Stock are actually
delivered without restrictive legend to such Buyer or such Buyer’s designee with DTC, as applicable, the “Share
Delivery Date”). The Company shall be responsible for any transfer agent fees or DTC fees with respect to any issuance
of Securities or the removal of any legends with respect to any Securities in accordance herewith.


 






    	 	37	 



     


    

 


(e)  
Failure to Timely Deliver; Buy-In. If the Company fails to, for any reason or for no reason, to issue and deliver (or cause
to be delivered) to a Buyer (or its designee) by the Required Delivery Date, either (I) if the Transfer Agent is not participating
in the DTC Fast Automated Securities Transfer Program, a certificate for the number of Conversion Shares to which such Buyer is
entitled and register such Conversion Shares on the Company’s share register or, if the Transfer Agent is participating
in the DTC Fast Automated Securities Transfer Program, to credit the balance account of such Buyer or such Buyer’s designee
with DTC for such number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II)
if after the Applicable Date a Current Public Information Failure occurs and the Company fails to promptly (x) so notify such
Buyer and (y) deliver the Conversion Shares electronically without any restrictive legend by crediting such aggregate number of
Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s
balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described in the immediately foregoing
clause (II) is hereinafter referred as a “Notice Failure” and together with the event described in clause (I)
above, a “Delivery Failure”), then, in addition to all other remedies available to such Buyer, the Company
shall pay in cash to such Buyer on each day after the Share Delivery Date and during such Delivery Failure an amount equal to
2% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior to the Required
Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer in writing
as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable
Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required
Delivery Date either (I) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, the
Company shall fail to issue and deliver a certificate to a Buyer and register such shares of Common Stock on the Company’s
share register or, if the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the balance
account of such Buyer or such Buyer’s designee with DTC for the number of shares of Common Stock to which such Buyer submitted
for legend removal by such Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after
such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that
such Buyer is entitled to receive from the Company (a “Buy-In”), then the Company shall, within two (2) Trading
Days after such Buyer’s request and in such Buyer’s discretion, either (i) pay cash to such Buyer in an amount equal
to such Buyer’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any, for the
shares of Common Stock so purchased) (the “Buy-In Price”), at which point the Company’s obligation to
so deliver such certificate or credit such Buyer’s balance account shall terminate and such shares shall be cancelled, or
(ii) promptly honor its obligation to so deliver to such Buyer a certificate or certificates or credit the balance account of
such Buyer or such Buyer’s designee with DTC representing such number of shares of Common Stock that would have been so
delivered if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess
(if any) of the Buy-In Price over the product of (A) such number of shares of Conversion Shares that the Company was required
to deliver to such Buyer by the Required Delivery Date multiplied by (B) the lowest Closing Sale Price (as defined in the Notes)
of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such Buyer to the Company of
the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing shall limit
such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation,
a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates
representing shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms
hereof. Notwithstanding anything herein to the contrary, with respect to any given Notice Failure and/or Delivery Failure, this
Section 5(e) shall not apply to the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer
with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to the analogous sections of the Note held
by such Buyer.


 






    	 	38	 



     


    

 


(f)  
FAST Compliance. While any Notes remain outstanding, the Company shall maintain a transfer agent that participates in the
DTC Fast Automated Securities Transfer Program.


 


6.  
CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.


 


(a)  
The obligation of the Company hereunder to issue and sell the Preferred Shares and the Notes to each Buyer at the Closing is subject
to the satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for
the Company’s sole benefit and (other than Section 6(a)(iv), which may not be waived) may be waived by the Company at any
time in its sole discretion by providing each Buyer with prior written notice thereof:


 


(i)  
Such Buyer shall have duly executed and delivered to the Company an Investor Collateral Certificate and issued an Investor Note
to the Company in such original principal amount as is set forth across from such Buyer’s name in column (8) of the Schedule
of Buyers, which shall be held by such Buyer as Collateral for the obligations of the Company under the Note issued to such Buyer
hereunder.


 


(ii)  
Such Buyer and each other Buyer shall have delivered to the Company the Cash Purchase Price (less, in the case of
any Buyer, the amounts withheld pursuant to Section 4(g)) for the Preferred Shares being purchased by such Buyer at the Closing
by wire transfer of immediately available funds in accordance with the Flow of Funds Letter.


 


(iii)  
Such Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.


 


(iv)  
Such Buyer shall have executed and delivered to the Company a voting agreement, in the form of Exhibit E hereof
(the “Voting Agreement”).


 






    	 	39	 



     


    

 


(v)  
The representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and
as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such specific date), and such Buyer shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied
with by such Buyer at or prior to the Closing Date.


 


7.  
CONDITIONS TO EACH BUYER’S OBLIGATION TO PURCHASE.


 


(a)  
The obligation of each Buyer hereunder to purchase its Preferred Shares and Note at the Closing is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s
sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice
thereof:


 


(i)  
The Company and MoviePass (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents
to which it is a party and the Company shall have duly executed and delivered to such Buyer (A) such aggregate number of Preferred
Shares as set forth across from such Buyer’s name in column (3) of the Schedule of Buyers as being purchased by such Buyer
at the Closing pursuant to this Agreement and (B) a Note in such aggregate original principal amount as is set forth across from
such Buyer’s name in column (4) of the Schedule of Buyers and with an Initial Unrestricted Principal (as defined in the
Note) as set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers, in each case, as being purchased
by such Buyer at the Closing pursuant to this Agreement.


 


(ii)  
Such Buyer shall have received the opinion of Greenberg Traurig LLP, dated as of the Closing Date, addressed to the Buyers and
the Placement Agent, in the form acceptable to such Buyer.


 


(iii)  
The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to
such Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.


 


(iv)  
The Company shall have delivered to such Buyer (A) a certificate evidencing the good standing of each of the Company and MoviePass
issued by the Secretary of State of Delaware, and (B) a certificate evidencing the Company’s qualification as a foreign
corporation and good standing issued by the Secretary of State of each of New York and California (as to the Company) and New
York (as to MoviePass), as of a date within ten (10) days of the Closing Date.


 


(v)  
The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation and the Certificate of Designations
as certified by the Delaware Secretary of State within ten (10) days of the Closing Date.


 






    	 	40	 



     


    

 


(vi)  
MoviePass shall have delivered to such Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary
of State (or comparable office) of Delaware within ten (10) days of the Closing Date.


 


(vii)  
The Company and MoviePass shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by
the Secretary of the Company and MoviePass and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b)
as adopted by the Company’s and MoviePass’ respective board of directors in a form reasonably acceptable to such Buyer,
(ii) the Certificate of Incorporation of the Company and MoviePass, and (iii) the Bylaws of the Company and MoviePass, each
as in effect at the Closing.


 


(viii)  
Each and every representation and warranty of the Company shall be true and correct in all material respects (except for such
representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in
all respects) as of the date when made and as of the Closing Date as though originally made at that time (except for representations
and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall
have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed,
satisfied or complied with by the Company at or prior to the Closing Date. Such Buyer shall have received a certificate, duly
executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other
matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.


 


(ix)  
The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares
of Common Stock outstanding on the Closing Date immediately prior to the Closing.


 


(x)  
The Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have
been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension
by the SEC or the Principal Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Principal
Market or (II) by falling below the minimum maintenance requirements of the Principal Market.


 


(xi)  
The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the
sale of the Securities, including without limitation, those required by the Principal Market, if any.


 


(xii)  
No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents.


 


(xiii)  
Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or
result in a Material Adverse Effect.


 






    	 	41	 



     


    

 


(xiv)  
The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Conversion
Shares.


 


(xv)  
MoviePass shall have executed and delivered to such Buyer a Guaranty in favor of such Buyer.


 


(xvi)  
Within two (2) Business Days prior to the Closing, the Company shall have delivered or caused to be delivered to each Buyer certified
copies of requests for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the
Company or MoviePass and which are filed in such office or offices as may be necessary or, in the opinion of the Buyers, desirable
to perfect the security interests purported to be created hereby, together with copies of such financing statements, none of which,
except as otherwise agreed in writing by the Buyers, shall cover any of the Collateral (as defined in the Notes), and the results
of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except as otherwise agreed
to in writing by the Buyers, shall not show any such Liens.


 


(xvii)  
The Company shall have irrevocably directed each Buyer to hold such Buyer’s Investor Note as Collateral for the obligations
of the Company under the Notes.


 


(xviii)  
The Company shall have delivered to such Buyer appropriate financing statements on Form UCC-1 to be duly filed in such office
or offices as may be necessary or, in the opinion of the Required Holders, desirable to perfect the security interests purported
to be created by each Security Document.


 


(xix)  
The Company shall have reimbursed Kelley Drye & Warren LLP & Richards, Layton & Finger, P.A. for all Transaction Expenses
in accordance with the invoices of Kelley Drye & Warren LLP and Richards, Layton & Finger, P.A. delivered to the Company
on or prior to the Closing Date.


 


(xx)  
Such Buyer shall have received a letter on the letterhead of the Company (the “Flow of Funds Letter”) (x) duly
executed by the Chief Executive Officer of the Company, setting forth the wire amounts of each Buyer and the wire transfer instructions
of the Company with respect to the Cash Purchase Price set forth in column (7) of the Schedule of Buyers and (y) directing
each Buyer (or its designee) to maintain physical possession of a duly executed Investor Note of such Buyer, in such original
principal amount as is set forth across from such Buyer’s name in column (8) of the Schedule of Buyers, issued pursuant
to the Note Purchase Agreement of such Buyer, both as payment for, and as Collateral (as defined in such Buyer’s Note) securing,
such Buyer’s Note to be issued and sold to such Buyer at the Closing. .


 


(xxi)  
The Company shall have duly executed and delivered to such Buyer voting and lockup agreements, each in the form of Exhibit
F hereof (the “Voting and Lockup Agreement”), duly executed and delivered to such Buyer by the Company,
on one hand, and, in separate Voting and Lockup Agreements, on the other hand, each stockholder listed on Schedule 7(a)(xxiii)
(the “Principal Stockholders”), representing approximately 1.71% of the outstanding Common Stock of the Company
as of the date hereof.


 






    	 	42	 



     


    

 


(xxii)  
The Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating
to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.


 


8.  
TERMINATION.


 


In
the event that the Closing shall not have occurred with respect to a Buyer within five (5) days of the date hereof, then such
Buyer shall have the right to terminate its obligations under this Agreement with respect to itself at any time on or after the
close of business on such date without liability of such Buyer to any other party; provided, however, (i) the right to terminate
this Agreement under this Section 8 shall not be available to such Buyer if the failure of the transactions contemplated
by this Agreement to have been consummated by such date is the result of such Buyer’s breach of this Agreement and (ii)
the abandonment of the sale and purchase of the Preferred Shares and the Notes shall be applicable only to such Buyer providing
such written notice, provided further that no such termination shall affect any obligation of the Company under this Agreement
to reimburse such Buyer for the expenses described in Section 4(g) above. Nothing contained in this Section 8 shall
be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or
the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations
under this Agreement or the other Transaction Documents.


 


9.  
MISCELLANEOUS.


 


(a)  
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. The Company hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or under any of the other Transaction Documents or with any transaction contemplated hereby or thereby,
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. Nothing contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking other legal action
against the Company in any other jurisdiction to collect on the Company’s obligations to such Buyer or to enforce a judgment
or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT
TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.


 






    	 	43	 



     


    

 


(b)  
Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other
party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document
format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original
thereof.


 


(c)  
Headings; Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to
include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,”
“include” and words of like import shall be construed broadly as if followed by the words “without limitation.”
The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement
instead of just the provision in which they are found.


 


(d)  
Severability; Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise determined
to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid
or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity
or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement 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). Notwithstanding anything to the contrary contained in this Agreement or any
other Transaction Document (and without implication that the following is required or applicable), it is the intention of the
parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the case may be), or payable
to or received by any of the Buyers, under the Transaction Documents (including without limitation, any amounts that would be
characterized as “interest” under applicable law) exceed amounts permitted under any applicable law. Accordingly,
if any obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant the Transaction Documents is finally
judicially determined to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed
to have been made by mutual mistake of such Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been
adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited
by the applicable law. Such adjustment shall be effected, to the extent necessary, by reducing or refunding, at the option of
such Buyer, the amount of interest or any other amounts which would constitute unlawful amounts required to be paid or actually
paid to such Buyer under the Transaction Documents. For greater certainty, to the extent that any interest, charges, fees, expenses
or other amounts required to be paid to or received by such Buyer under any of the Transaction Documents or related thereto are
held to be within the meaning of “interest” or another applicable term to otherwise be violative of applicable law,
such amounts shall be pro-rated over the period of time to which they relate.


 






    	 	44	 



     


    

 


(e)  
Entire Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto
and thereto and the instruments referenced herein and therein supersede all other prior oral or written agreements between the
Buyers, the Company, its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any
transactions by any Buyer with respect to Common Stock or the Securities, and the other matters contained herein and therein,
and this Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments
referenced herein and therein contain the entire understanding of the parties solely with respect to the matters covered herein
and therein; provided, however, nothing contained in this Agreement or any other Transaction Document shall (or shall be deemed
to) (i) have any effect on any agreements any Buyer has entered into with, or any instruments any Buyer has received from, the
Company or any of its Subsidiaries prior to the date hereof with respect to any prior investment made by such Buyer in the Company
or (ii) waive, alter, modify or amend in any respect any obligations of the Company or any of its Subsidiaries, or any rights
of or benefits to any Buyer or any other Person, in any agreement entered into prior to the date hereof between or among the Company
and/or any of its Subsidiaries and any Buyer, or any instruments any Buyer received from the Company and/or any of its Subsidiaries
prior to the date hereof, and all such agreements and instruments shall continue in full force and effect. Except as specifically
set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with
respect to such matters. For clarification purposes, the Recitals are part of this Agreement. No provision of this Agreement may
be amended other than by an instrument in writing signed by the Company and the Required Holders (as defined below), and any amendment
to any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers
and holders of Securities, as applicable; provided that no such amendment shall be effective to the extent that it (A) applies
to less than all of the holders of the Securities then outstanding or (solely vis-a-vis the other Preferred Shares and/or Notes,
as applicable) disproportionately and adversely amends or modifies any term or condition of the Certificate of Designations or
the Notes (it being understood that any holder of the January Notes and the November Notes may receive consideration or benefits
in its capacity as a holder of the January Notes and/or the November Notes without impacting such proportionality determination
hereunder) or (B) imposes any financial obligation or liability on any Buyer without such Buyer’s prior written consent
(which may be granted or withheld in such Buyer’s sole discretion). No waiver shall be effective unless it is in writing
and signed by an authorized representative of the waiving party, provided that the Required Holders may waive any provision of
this Agreement, and any waiver of any provision of this Agreement made in conformity with the provisions of this Section 9(e)
shall be binding on all Buyers and holders of Securities, as applicable, provided that no such waiver shall be effective to the
extent that it (1) applies to less than all of the holders of the Securities then outstanding (unless a party gives a waiver as
to itself only) or (2) imposes any financial obligation or liability on any Buyer without such Buyer’s prior written consent
(which may be granted or withheld in such Buyer’s sole discretion). As a material inducement for each Buyer to enter into
this Agreement, the Company expressly acknowledges and agrees that (x) no due diligence or other investigation or inquiry conducted
by a Buyer, any of its advisors or any of its representatives shall affect such Buyer’s right to rely on, or shall modify
or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement
or any other Transaction Document and (y) unless a provision of this Agreement or any other Transaction Document is expressly
preceded by the phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC Documents shall
affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s
representations and warranties contained in this Agreement or any other Transaction Document. “Required Holders”
means (I) Hudson Bay Master Fund Ltd., both prior to the Closing and, thereafter, so long as it beneficially owns any of the Notes
(or any Convertible Securities issued in exchange therefore) or the Preferred Shares or any Underlying Securities and (II) after
the Closing, so long as Hudson Bay Master Fund Ltd. does not beneficially owns any of the Notes (or any Convertible Securities
issued in exchange therefore) or the Preferred Shares or any Underlying Securities, holders of a majority of the Preferred Shares
and the Underlying Securities as of such time (excluding any Preferred Shares and Underlying Securities held by the Company or
any of its Subsidiaries as of such time) issued or issuable hereunder or pursuant to the Notes.


 






    	 	45	 



     


    

 


(f)  
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 electronic mail; or (iii) one (1) Business Day after deposit with an overnight courier service with
next day delivery specified, 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:


 


If
to the Company:


 


Helios
and Matheson Analytics Inc.

Empire State Building 


350
5th Avenue


New
York, New York 10118

Telephone: (212) 979-8228

Attention: Chief Financial Officer

E-Mail: sbenson@hmny.com


  


With
a copy (for informational purposes only) to:


 


Greenberg
Traurig LLP


1840
Century Park East


Suite
1900


Los
Angeles, CA 90067


E-Mail:
friedmannk@gtlaw.com


 


If
to the Transfer Agent:


 


Computershare

211 Quality Circle, Suite 210


College
Station, TX 77845

Telephone: (502) 301-6102

Facsimile: (866) 519-2854

Attention: Jade Larimore

E-Mail: Jade.Larimore@computershare.com


 






    	 	46	 



     


    

 


If
to a Buyer, to its address, e-mail address and facsimile number set forth on the Schedule of Buyers, with copies to such Buyer’s
representatives as set forth on the Schedule of Buyers,


 


with
a copy (for informational purposes only) to:


 


Kelley
Drye & Warren LLP

101 Park Avenue

New York, NY 10178

Telephone: (212) 808-7540

Facsimile: (212) 808-7897

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 


or
to such other address, e-mail address and/or facsimile number 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, provided that
Kelley Drye & Warren LLP shall only be provided copies of notices sent to Hudson Bay. 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, with respect to each
facsimile transmission, 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.


 


(g)  
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns, including any purchasers of any of the Preferred Shares or the Notes. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written consent of the Required Holders, including, without
limitation, by way of a Fundamental Transaction (as defined in the Notes) (unless the Company is in compliance with the applicable
provisions governing Fundamental Transactions set forth in the Notes) or a Fundamental Transaction (as defined in the Certificate
of Designations) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth
in the Certificate of Designations). A Buyer may assign some or all of its rights hereunder in connection with any transfer of
any of its Securities without the consent of the Company, in which event such assignee shall be deemed to be a Buyer hereunder
with respect to such assigned rights.


 


(h)  
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, other than
the Indemnitees referred to in Section 9(k). Notwithstanding the foregoing, the Placement Agent shall be intended third party
beneficiaries of (i) the Company’s representations and warranties set forth in Section 3 hereof and (ii) each Buyer’s
representations, warranties and agreements set forth in Section 2 hereof.


 






    	 	47	 



     


    

 


(i)  
Survival. The representations, warranties, agreements and covenants shall survive the Closing. Each Buyer shall be responsible
only for its own representations, warranties, agreements and covenants hereunder.


 


(j)  
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.


 


(k)  
Indemnification.


 


(i)  
In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless each Buyer and each holder of any Securities and all of their stockholders, partners, members, officers,
directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives
(including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively,
the “Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties,
fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to
the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the
“Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (i)
any misrepresentation or breach of any representation or warranty made by the Company or any Subsidiary in any of the Transaction
Documents, (ii) any breach of any covenant, agreement or obligation of the Company or any Subsidiary contained in any of the Transaction
Documents or (iii) any cause of action, suit, proceeding or claim brought or made against such Indemnitee by a third party (including
for these purposes a derivative action brought on behalf of the Company or any Subsidiary) or which otherwise involves such Indemnitee
that arises out of or results from (A) the execution, delivery, performance or enforcement of any of the Transaction Documents,
(B) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance
of the Securities, (C) any disclosure properly made by such Buyer pursuant to Section 4(i), or (D) the status of such Buyer
or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated by the Transaction
Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any action or
proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law.


 






    	 	48	 



     


    

 


(ii)  
Promptly after receipt by an Indemnitee under this Section 9(k) of notice of the commencement of any action or proceeding (including
any governmental action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim in respect thereof
is to be made against the Company under this Section 9(k), deliver to the Company a written notice of the commencement thereof,
and the Company shall have the right to participate in, and, to the extent the Company so desires, to assume control of the defense
thereof with counsel mutually satisfactory to the Company and the Indemnitee; provided, however, that an Indemnitee shall have
the right to retain its own counsel with the fees and expenses of such counsel to be paid by the Company if: (A) the Company has
agreed in writing to pay such fees and expenses; (B) the Company shall have failed promptly to assume the defense of such Indemnified
Liability and to employ counsel reasonably satisfactory to such Indemnitee in any such Indemnified Liability; or (C) the named
parties to any such Indemnified Liability (including any impleaded parties) include both such Indemnitee and the Company, and
such Indemnitee shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to
represent such Indemnitee and the Company (in which case, if such Indemnitee notifies the Company in writing that it elects to
employ separate counsel at the expense of the Company, then the Company shall not have the right to assume the defense thereof
and such counsel shall be at the expense of the Company), provided further, that in the case of clause (C) above the Company shall
not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for the Indemnitees. The Indemnitee
shall reasonably cooperate with the Company in connection with any negotiation or defense of any such action or Indemnified Liability
by the Company and shall furnish to the Company all information reasonably available to the Indemnitee which relates to such action
or Indemnified Liability. The Company shall keep the Indemnitee reasonably apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. The Company shall not be liable for any settlement of any action, claim or
proceeding effected without its prior written consent, provided, however, that the Company shall not unreasonably withhold, delay
or condition its consent. The Company shall not, without the prior written consent of the Indemnitee, consent to entry of any
judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnitee of a release from all liability in respect to such Indemnified Liability or litigation,
and such settlement shall not include any admission as to fault on the part of the Indemnitee. Following indemnification as provided
for hereunder, the Company shall be subrogated to all rights of the Indemnitee with respect to all third parties, firms or corporations
relating to the matter for which indemnification has been made. The failure to deliver written notice to the Company within a
reasonable time of the commencement of any such action shall not relieve the Company of any liability to the Indemnitee under
this Section 9(k), except to the extent that the Company is materially and adversely prejudiced in its ability to defend such
action.


 


(iii)  
The indemnification required by this Section 9(k) shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, within ten (10) days after bills are received or Indemnified Liabilities are incurred.


 






    	 	49	 



     


    

 


(iv)  
The indemnity agreement contained herein shall be in addition to (A) any cause of action or similar right of the Indemnitee against
the Company or others, and (B) any liabilities the Company may be subject to pursuant to the law.


 


(l)  
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. No specific representation or warranty shall
limit the generality or applicability of a more general representation or warranty. Each and every reference to share prices,
shares of Common Stock and any other numbers in this Agreement that relate to the Common Stock shall be automatically adjusted
for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions that occur with respect
to the Common Stock after the date of this Agreement. Notwithstanding anything in this Agreement to the contrary, for the avoidance
of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions with
respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities of the
Company in order for such Buyer (or its broker or other financial representative) to effect short sales or similar transactions
in the future.


 


(m)  
Remedies. Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities,
shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have
been granted at any time under any other agreement or contract and all of the rights which such holders have under any law. Any
Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without
posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise
all other rights granted by law. Furthermore, the Company recognizes that in the event that it or any Subsidiary fails to perform,
observe, or discharge any or all of its or such Subsidiary’s (as the case may be) obligations under the Transaction Documents,
any remedy at law would inadequate relief to the Buyers. The Company therefore agrees that the Buyers shall be entitled to specific
performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction
in any such case without the necessity of proving actual damages and without posting a bond or other security. The remedies provided
in this Agreement and the other Transaction Documents shall be cumulative and in addition to all other remedies available under
this Agreement and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other
injunctive relief).


 


(n)  
Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of)
the Transaction Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the
Company or any Subsidiary does not timely perform its related obligations within the periods therein provided, then such Buyer
may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company or such Subsidiary (as the
case may be), any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.


 






    	 	50	 



     


    

 


(o)  
Payment Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant
to any of the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such
payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise
restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy
law, foreign, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such enforcement or setoff had not occurred. Unless otherwise expressly indicated, all dollar amounts referred
to in this Agreement and the other Transaction Documents are in United States Dollars (“U.S. Dollars”), and
all amounts owing under this Agreement and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated
in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on
the date of calculation. “Exchange Rate” means, in relation to any amount of currency to be converted into
U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant
date of calculation.


 


(p)  
Judgment Currency.


 


(i)  
If for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction
Document in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter
in this Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement,
the conversion shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:


 


(1)  
the date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other
jurisdiction that will give effect to such conversion being made on such date: or


 


(2)  
the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date
as of which such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment
Conversion Date”).


 


(ii)  
If in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change
in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted
at the Exchange Rate prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased
with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment
Conversion Date.


 


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


 






    	 	51	 



     


    

 


(q)  
Independent Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents
are several and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance
of the obligations of any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges
that the Buyers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or
create a presumption that the Buyers are in any way acting in concert or as a group or entity, and the Company shall not assert
any such claim with respect to such obligations or the transactions contemplated by the Transaction Documents or any matters,
and the Company acknowledges that the Buyers are not acting in concert or as a group, and the Company shall not assert any such
claim, with respect to such obligations or the transactions contemplated by the Transaction Documents. The decision of each Buyer
to purchase Securities pursuant to the Transaction Documents has been made by such Buyer independently of any other Buyer. Each
Buyer acknowledges that no other Buyer has acted as agent for such Buyer in connection with such Buyer making its investment hereunder
and that no other Buyer will be acting as agent of such Buyer in connection with monitoring such Buyer’s investment in the
Securities or enforcing its rights under the Transaction Documents. The Company and each Buyer confirms that each Buyer has independently
participated with the Company and its Subsidiaries in the negotiation of the transaction contemplated hereby with the advice of
its own counsel and advisors. Each Buyer shall be entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary
for any other Buyer to be joined as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate
the purchase and sale of the Securities contemplated hereby was solely in the control of the Company, not the action or decision
of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries and not because it was required or requested
to do so by any Buyer. It is expressly understood and agreed that each provision contained in this Agreement and in each other
Transaction Document is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its Subsidiaries
and the Buyers collectively and not between and among the Buyers.


 


(r)  
Performance Date. If the date by which any obligation under any of the Transaction Documents must be performed occurs on
a day other than a Business Day, then the date by which such performance is required shall be the next Business Day following
such date.


 


[signature
pages follow]


 






    	 	52	 



     


    

 


IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed
as of the date first written above.


 


	 	COMPANY:
	 	 
	 	HELIOS AND MATHESON ANALYTICS INC.
	 	 	 
	 	By:	
	 	 	Name:
	 	 	Title:


 






    


     


    

 





IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed
as of the date first written above.


 


	 	BUYER,
                                         NOVEMBER BUYER AND JANUARY BUYER:
 
	 	 
	 	HELIOS
    AND MATHESON ANALYTICS INC.
	 	 	 
	 	By:	
	 	 	Name:
	 	 	Title:
	 	 	 
	 	[ ]	Such
                                         Buyer hereby elects that the “Maximum Percentage” (as defined in the Notes)
                                         shall be 4.99%.




	 	 	 
	 	[ ]	Such Buyer
    hereby elects that the “Maximum Percentage” (as defined in the Notes) shall be 9.99%.


 






    


     


    

 


SCHEDULE
OF BUYERS


 


	(1)	(2)	(3)	(4)	(5)	(6)	(7)	(8)	(9)
	Buyer
	Address
                                         and Facsimile Number
	Aggregate

                                         Number of

                                         Preferred Shares
	Original
                                         Principal Amount of

                                         Notes
	Initial
                                         Unrestricted Principal of

        Notes
	Purchase
                                         Price
	Cash
                                         Purchase Price
	Note
                                         Purchase Price

                                         and Principal Amount of Investor Note
	Legal
                                         Representative’s

                                         Address and Facsimile Number

	 	 	 	 	 	 	 	 	 
	

    Hudson Bay Master Fund Ltd.	

                                         Please deliver any notices other than Pre-Notices to:

         

        777
        Third Avenue, 30th Floor

        New York, NY 10017

        Attention: Yoav Roth

        Facsimile: (212) 571-1279

        E-mail: investments@hudsonbaycapital.com

        Residence: Cayman Islands

         

        Please
        deliver any Pre-Notice to:

         

        777
        Third Ave., 30th Floor

        New
        York, NY 10017

        Facsimile:
        (646) 214-7946

        Attention:
        Scott Black

        General
        Counsel and Chief Compliance Officer

         
	 	 	 	 	 	 	

                                         Kelley Drye & Warren LLP

        101
        Park Avenue

        New
        York, NY 10178

        Telephone:
        (212) 808-7540

        Facsimile:
        (212) 808-7897

        Attention:
        Michael A. Adelstein, Esq.