Exhibit 10.1


 


INVESTOR
RIGHTS AGREEMENT


 


THIS
INVESTOR RIGHTS AGREEMENT, dated as of June 10, 2016 (this “Agreement”), by and among FlexShopper, Inc., a
Delaware corporation (the “Company”), the Management Stockholder and the Investors listed on the signature
pages hereto (each an “Investor”, and together, the “Investors”). Each of the Investors,
the Company and the Management Stockholder are from time to time referred to herein as a “Party” and collectively
as the “Parties”.


 


RECITALS


 


WHEREAS,
B2 FIE V LLC (“B2 FIE”) and the Company have entered into that certain Subscription Agreement, dated as of
June 10, 2016 (the “Subscription Agreement”), pursuant to which B2 FIE has agreed to purchase 20,000 shares
of newly issued Series 2 convertible preferred stock, par value $0.001 per share, of the Company (the “Preferred Stock”);
and


 


WHEREAS,
MCP-FS, L.P. and the Company may, within ten (10) Business Days of the date hereof, enter into a subscription agreement pursuant
to which MCP-FS, L.P. may agree to purchase up to 5,000 shares of Preferred Stock (if executed, such agreement the “Middlemarch
Subscription Agreement”).


 


WHEREAS,
it is a condition precedent to the Investors’ obligation to purchase such Preferred Stock that the Company enter into this
Agreement with the Investors to provide for certain rights and obligations of the Parties following the closing of the transactions
contemplated by the Subscription Agreement (the “Closing”).


 


NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound,
hereby agree as follows:


 


ARTICLE
I

DEFINITIONS


 


SECTION
1.1. Definitions. The following terms shall have the meanings ascribed to them below:


 


“Affiliate”
of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control
with such Person. For purposes of this definition, “control” when used with respect to any Person has the meaning
specified in Rule 12b-2 under the Exchange Act; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.


 


“Agreement”
means this Agreement, as amended, modified or supplemented from time to time, in accordance with the terms hereof, together with
any exhibits, schedules or other attachments hereto.


 



    


     

    

 


“Beneficially
Own” with respect to any securities means having “beneficial ownership” of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act, including without limitation, the 60-day provision in paragraph (d)(1)(i) thereof).
The terms “Beneficial Ownership” and “Beneficial Owner” have correlative meanings.


 


“Bravo
Investor Parties” means B2 FIE and its Affiliate transferees.


 


“Business
Day” means any day other than (i) any Saturday or Sunday or (ii) any other day on which banks located in New York,
New York are authorized or required by Law to be closed.


 


“Capital
Stock” means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents
of or interests in (in each case however designated) stock issued by the Company.


 


“Closing”
has the meaning ascribed thereto in the recitals of this Agreement.


 


“Common
Stock” means the Company’s common stock, par value $0.0001 per share.


 


“Company”
has the meaning set forth in the preamble of this Agreement.


 


“Electronic
Delivery” has the meaning set forth in Section 4.8.


 


“Equity
Securities” means any Common Stock, Preferred Stock, Options or any securities convertible, exchangeable or exercisable
for or into such securities.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended.


 


“FINRA”
means the U.S. Financial Industry Regulatory Authority.


 


“GAAP”
means generally accepted accounting principles in the United States as in effect from time to time.


 


“Governmental
Entity” means any domestic (federal, state, municipal or local) or foreign or multinational government or governmental,
regulatory, political, judicial or quasi-judicial or administrative subdivision, department, authority, entity, agency, regulator,
commission, board, bureau, court, or instrumentality.


 


“Indemnified
Party” has the meaning set forth in Section 2.6(c).


 


“Indemnifying
Party” has the meaning set forth in Section 2.6(c).


 


“Investor”
has the meaning set forth in the preamble of this Agreement.


 


“Investor
Director” has the meaning set forth in Section 3.3(a).


 


“Investor
Parties” means the Investors and their Affiliate transferees.


 


“Investor
Party Indemnitees” has the meaning set forth in Section 2.6(a).


 



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“Law”
means any applicable federal, state, local or foreign law, statute, ordinance, rule, guideline, regulation, order, writ, decree,
agency requirement, license or permit of any Governmental Entity.


 


“Losses”
has the meaning set forth in Section 2.6(a).


 


“Management
Stockholder” means Brad Bernstein and his Affiliates.


 


“Middlemarch
Investor Parties” means MCP-FS, L.P. and its Affiliate transferees.


 


“Notice
and Questionnaire” means a written notice executed by the Investor Parties and delivered to the Company containing the
information required by Item 507 of Regulation S-K to be included in any Shelf Registration Statement regarding the Investor Parties
seeking to sell Preferred Stock (or the underlying Common Stock) pursuant thereto.


 


“Options”
means any rights, warrants or options to subscribe for or purchase Common Stock or any securities convertible, exchangeable or
exercisable for or into Common Stock.


 


“Other
Securities” means the Common Stock or other securities of the Company which the Company is registering pursuant to a
Registration Statement covered by Section 2.2.


 


“Ownership
Percentage” has the meaning ascribed thereto in Section 3.3(a) of this Agreement.


 


“Parties”
has the meaning ascribed thereto in the recitals of this Agreement.


 


“Permitted
Issuance” means any issuance by the Company of Equity Securities (1) to the Company or a Subsidiary of the Company,
(2) to officers, employees, directors or consultants of the Company and its Subsidiaries pursuant to the Company’s Board-approved
equity incentive plans and the securities issued upon exercise of such grants, (3) as consideration in a merger or acquisition
of the stock or assets of another Person, (4) upon the occurrence of a stock split, stock dividend or any subdivision of the Common
Stock, or any other reclassification, reorganization or other similar recapitalization, (5) pursuant to the conversion or exchange
of any securities of the Company into Capital Stock, or the exercise of any warrants or other rights to acquire Capital Stock;
(6) pursuant to a bona fide firm commitment underwritten public offering; (7) in connection with any private placement of warrants
to purchase Capital Stock to lenders or other institutional investors (excluding the Company’s stockholders) in any arm’s
length transaction approved by the Board in which such lenders or investors provide debt financing to the Company or any Company
Subsidiary; (8) in connection with a joint venture, strategic alliance or other commercial relationship with any Person (including
Persons that are customers, suppliers and strategic partners of the Company or any Subsidiary) relating to the operation of the
Company’s or any Subsidiary’s business and for which a primary purpose thereof is not raising capital; or (9) in connection
with any office lease or equipment lease or similar equipment financing transaction approved by the Board in which the Company
or any Subsidiary obtains from a lessor or vendor the use of such office space or equipment for its business.


 


“Permitted
Investor Transferee” has the meaning set forth in Section 4.2.


 



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“Permitted
Transferee” means any Affiliate or family member of a Management Stockholder.


 


“Person”
means any individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company,
joint venture, sole proprietorship, unincorporated organization, Governmental Entity or other entity.


 


“Piggyback
Notice” has the meaning set forth in Section 2.2(a).


 


“Piggyback
Registration” has the meaning set forth in Section 2.2(a).


 


“Pro
Rata Share” means, for any Investor Party at any time of determination, the quotient of (i) the number of shares of
(w) Common Stock issuable upon the conversion of the Preferred Stock plus (x) Common Stock issued upon the conversion of the Preferred
Stock, each Beneficially Owned by such Investor Party, divided by, (ii) the number of shares of (y) Common Stock issuable
upon the conversion of the Preferred Stock plus (z) Common Stock issued upon the conversion of the Preferred Stock, each Beneficially
Owned by all Investor Parties at such time of determination.


 


“Proposed
Transfer” has the meaning set forth in Section 3.5(a).


 


“Proposed
Transferee” has the meaning set forth in Section 3.5(a).


 


“Prospectus”
means the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material incorporated by reference into such prospectus.


 


“Purchase
Rights” has the meaning set forth in Section 3.2.


 


“Registrable
Securities” means shares of Preferred Stock issued by the Company at the Closing, as well as any shares of Common Stock
issuable upon the conversion of the Preferred Stock and any shares of Common Stock or other securities issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which is issued as) a dividend or other distribution with
respect to, or in exchange generally for, or in replacement generally of, such Preferred Stock or other Registrable Securities
and any securities issued in exchange for such Preferred Stock or other Registrable Securities in any merger, reorganization,
consolidation, share exchange, recapitalization, restructuring or other comparable transaction of the Company. As to any particular
Registrable Securities, once issued such securities shall cease to be Registrable Securities when (a) a Registration Statement
with respect to the sale by the Investor Parties holding such securities has been declared effective by the SEC and such securities
have been disposed of pursuant to such effective Registration Statement, (b) such securities shall have been or could be sold
by the holder, without being subject to any holding period or volume limitations pursuant to Rule 144, under circumstances in
which all of the applicable conditions (including any holding period or volume limitations) of Rule 144 (or any similar provisions
then in force) under the Securities Act are met, (c) such securities have been otherwise transferred and the Company has delivered
a new certificate or other evidence of ownership for such securities not bearing a restrictive legend and not subject to any stop
order, and such securities may be publicly resold by the Person receiving such certificate without restriction, or (d) such securities
shall have ceased to be outstanding.


 



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“Registration
Statement” means any registration statement of the Company under the Securities Act which permits the public offering
of any of the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements
to such registration statement, including post-effective amendments, all exhibits and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.


 


“SEC”
means the U.S. Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended.


 


“Shelf
Demand Notice” has the meaning set forth in Section 2.1(a).


 


“Shelf
Filing Date” has the meaning set forth in Section 2.1(a).


 


“Shelf
Registration Statement” has the meaning set forth in Section 2.1(a).


 


“Shelf
Take-Down Notice” has the meaning set forth in Section 2.1(b).


 


“Subscription
Agreement” has the meaning ascribed thereto in the recitals of this Agreement.


 


“Subsidiary”
means, when used with respect to any Person, any other Person of which (a) in the case of a corporation, at least (i) a majority
of the equity and (ii) a majority of the voting interests are owned or controlled, directly or indirectly, by such first Person,
by any one or more of its Subsidiaries, or by any combination of such first Person and one or more of its Subsidiaries or (b)
in the case of any Person other than a corporation, such first Person, one or more of its Subsidiaries, or such first Person and
one or more of its Subsidiaries combined (i) owns a majority of the equity interests thereof and (ii) has the power to elect or
direct the election of a majority of the members of the governing body thereof. As used in this Agreement, unless the context
requires otherwise, references to a Subsidiary or Subsidiaries shall mean a Subsidiary or the Subsidiaries of the Company.


 


“Tag-Along
Notice” has the meaning set forth in Section 3.5(b).


 


“Tagging
Stockholder” has the meaning set forth in Section 3.5(a).


 


“Transaction
Documents” means this Agreement together with any other documents referred to in this Agreement and any other agreements
entered into or to be entered into between the Company on the one hand, and the Investor Parties on the other hand, on or after
the effective date pursuant to or in connection with this Agreement.


 


“Transfer”
means, with respect to any shares of Preferred Stock (or the underlying Common Stock), a direct or indirect transfer, sale, exchange,
assignment, pledge, hypothecation or other encumbrance or other disposition of such shares, including the grant of an option or
other right, whether directly or indirectly, whether voluntarily, involuntarily or by operation of Law; and “Transferred”
shall have a correlative meaning.


 





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“Transferring
Stockholder” has the meaning set forth in Section 3.5(a).


 


“Voting
Stock” means Capital Stock of the class or classes pursuant to which the holders thereof have the general voting power
under ordinary circumstances (determined without regard to any classification of directors).


 


“Waterfall
Rights Agreement” means that certain Investor Rights Agreement by and among the Company, Waterfall Asset Management,
LLC and the other parties thereto, dated March 6, 2015.


 


SECTION
1.2. General Interpretive Principles. Unless the context otherwise requires: (i) words in the singular include the plural,
and in the plural include the singular; (ii) “including” means including without limitation; (iii) references to any
Section or clause refer to the corresponding Section or clause, respectively, of this Agreement; (iv) any reference to a day or
number of days, unless expressly referred to as a business day shall mean the respective calendar day or number of calendar days;
(v) references to Sections of or Rules under the Exchange Act shall be deemed to include substitute, replacement or successor
Sections or Rules, and any term defined by reference to a Section of or Rule under the Exchange Act shall include SEC and judicial
interpretations of such Section or Rule; and (vi) headings are for convenience of reference only.


 


ARTICLE
II

REGISTRATION RIGHTS


 


SECTION
2.1. Shelf Registration.


 


(a)At
any time following the six month anniversary of the date hereof , the Investor Parties holding a majority of the Registrable Securities
held by all Investor Parties shall have the right, by delivering a written notice to the Company (a “Shelf Demand Notice”),
to require the Company to file a registration statement to register for resale, on a continuous or delayed basis pursuant to Rule
415 under the Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC, of all of the Registrable Securities (the “Shelf Registration Statement”). The Company shall use
its reasonable best efforts to prepare and file with the SEC the Shelf Registration Statement within 60 days after receipt of
the Shelf Demand Notice, if filing on Form S-1, and within 30 days after receipt of the Shelf Demand Notice if filing on Form
S-3 (the “Shelf Filing Date”). The Shelf Registration Statement shall be on Form S-1 (or any comparable or
successor form or forms) or, if eligible, on Form S-3 (or any comparable or successor form or forms) under the Securities Act.
The Company shall use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective under the
Securities Act by the SEC within 45 days after the Shelf Filing Date. The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement (or any successor Shelf Registration Statement) continuously effective under the Securities Act
until the earlier of (i) the date when all of the Registrable Securities covered by such Shelf Registration Statement have been
sold and (ii) the date on which the Investor Parties cease to own any Registrable Securities.


 



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(b)If
any Investor Party wishes to sell Registrable Securities pursuant to a Shelf Registration Statement and related Prospectus, it
will do so in accordance with this Section 2.1(b) and Section 2.4. Any Investor Party wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus, whether in an underwritten offering or otherwise,
shall notify the Company of such intent (a “Shelf Take-Down Notice”) and shall deliver a Notice and Questionnaire
to the Company at least five (5) Business Days prior to any intended distribution of Registrable Securities under the Shelf Registration
Statement, it being agreed that if any such Investor Party intends to distribute any Registrable Securities by means of an underwritten
offering it shall promptly so advise the Company and the Company shall take all reasonable steps to facilitate such distribution,
including the actions required pursuant to Section 2.4(a)(vii). From and after the date the Shelf Registration Statement
is declared effective, the Company shall, as promptly as practicable after the date a Notice and Questionnaire is delivered to
it in connection with a Shelf Take-Down Notice:


 


(i)if
required by applicable Law, file with the SEC a post-effective amendment to the Shelf Registration Statement or prepare and, if
required by applicable Law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that the Investor Parties are named as a selling security holder in
the Shelf Registration Statement and the related Prospectus in such a manner as to permit the Investor Parties to deliver such
Prospectus to purchasers of Registrable Securities in accordance with applicable Law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its reasonable best efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as is practicable;


 


(ii)provide
the Investor Parties copies of any documents to filed pursuant to Section 2.1(b)(i) a reasonable period of time prior to
such filing and allow the Investor Parties to provide comments; and


 


(iii)notify
the Investor Parties as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2.1(b)(i).


 


Notwithstanding
anything contained herein to the contrary, the Company shall be under no obligation to name any Investor Party as a selling security
holder in any Shelf Registration Statement or related Prospectus if such Investor Party has not delivered a Notice and Questionnaire
to the Company.


 



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(c)If
any of the Registrable Securities to be sold pursuant to a Shelf Registration Statement are to be sold in a firm commitment underwritten
offering which underwritten offering was initially requested by any Investor Party pursuant to a Shelf Take-Down Notice, the Investor
Party making the demand shall select the underwriters, who shall be reasonably acceptable to the Company. If the managing underwriter(s)
of such underwritten offering advise the Investor Parties in writing that it is their good faith opinion that the total number
or dollar amount of Registrable Securities proposed to be sold in such offering, together with any Other Securities proposed to
be included by holders thereof which are entitled to include securities in such Registration Statement, exceeds the total number
or dollar amount of such securities that can be sold without having an adverse effect on the price, timing or distribution of
the Registrable Securities to be so included, together with all such Other Securities, then there shall be included in such firm
commitment underwritten offering the number or dollar amount of Registrable Securities and such Other Securities that in the opinion
of such managing underwriter(s) can be sold without so adversely affecting such offering, and such number of Registrable Securities
and Other Securities shall be allocated for inclusion as follows:


 


(i)first,
the Registrable Securities for which inclusion in such underwritten offering was requested by any Investor Party based on the
number of Registrable Securities Beneficially Owned by such Investor Party; and


 


(ii)second,
among any holders of Other Securities, pro rata, based on the number of Other Securities Beneficially Owned by each such holder
of Other Securities.


 


SECTION
2.2. Piggyback Registration.


 


(a)At
any time after the Closing if, other than pursuant to Sections 2.1, the Company proposes to file a registration statement
under the Securities Act with respect to an offering by the Company for its own account (other than a registration statement (a)
on Form S-4, Form S-8 or any successor forms thereto, (b) filed solely in connection with any employee benefit or dividend reinvestment
plan or (c) for the purpose of effecting a rights offering relating to the Common Stock) or for the account of any of its security
holders, the Company will give to the Investor Parties written notice of such filing at least fifteen (15) days prior to the anticipated
filing date (the “Piggyback Notice”). The Piggyback Notice shall offer the Investor Parties the opportunity
to include in such registration statement the number of Registrable Securities as it may request (a “Piggyback Registration”).
Subject to Section 2.2(b), the Company shall include in each such Piggyback Registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein within seven (7) days after notice has been given
to the Investor Parties. The Company shall be required to maintain the effectiveness of the Registration Statement for a Piggyback
Registration for a period of 360 days after the effective date thereof or such shorter period in which all Registrable Securities
included in such Registration Statement have actually been sold.


 



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(b)If
any of the securities to be registered pursuant to the registration giving rise to the Investor Parties’ rights under this
Section 2.2 are to be sold in an underwritten offering, the Investor Parties shall be permitted to include all Registrable
Securities requested to be included in such registration in such offering on the same terms and conditions as any other shares
of Capital Stock (other than terms and conditions that differ solely as a result of being a different class of Capital Stock)
, if any, of the Company included therein; provided, however, that if such offering involves a firm commitment underwritten
offering and the managing underwriter(s) of such underwritten offering advise the Investor Parties in writing that it is their
good faith opinion that the total number or dollar amount of Registrable Securities proposed to be sold in such offering, together
with all Other Securities that the Company and any other Persons having rights to participate in such registration intend to include
in such offering, exceeds the total number or dollar amount of such securities that can be sold without having an adverse effect
on the price, timing or distribution of the Registrable Securities to be so included together with all such Other Securities,
then there shall be included in such firm commitment underwritten offering the number or dollar amount of Registrable Securities
and such Other Securities that in the opinion of such managing underwriter(s) can be sold without so adversely affecting such
offering, and such number of Registrable Securities and Other Securities shall be allocated for inclusion as follows:


 


(i)first,
by any Person, if any, (other than the Investor Parties) exercising a contractual right to demand registration pursuant to which
such registration statement was filed; and


 


(ii)second,
all Other Securities being sold by the Company or by any other holders of Registrable Securities or Other Securities requesting
such registration, pro rata, based on the aggregate number of Registrable Securities and Other Securities Beneficially Owned by
each such holder.


 


(c)The
Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2.2 prior to
the effectiveness of the related Registration Statement and shall have no obligation to register any Registrable Securities in
connection with such registration, except to the extent provided herein.


 


(d)Each
Investor Party shall have the right to withdraw its request for inclusion of its Registrable Securities in any Piggyback Registration
by giving written notice to the Company of its request to withdraw at least two (2) Business Days prior to the planned effective
date of the related Registration Statement. Notwithstanding Section 2.3, the Company shall not be required to pay for the
expenses of any Investor Party in connection with any registration proceeding begun pursuant to this Section 2.2 from which
the Investor Parties has subsequently withdrawn pursuant to this Section 2.2(d), unless such Investor Party’s withdrawal
is based upon material adverse information concerning the Company that the Company had not publicly disclosed at least two (2)
Business Days prior to the request for such withdrawal.


 


SECTION
2.3. Registration Expenses. In connection with registrations pursuant to Sections 2.1, and 2.2 (including
any subsequently abandoned or withdrawn registration statement), the Company shall pay all of the registration expenses incurred
in connection with the registration thereunder, including, without limitation, all: (a) registration and filing fees, (b) fees
and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the Registrable Securities), (c) processing, duplicating and printing expenses, (d) internal expenses
of the Company (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting
duties), (e) fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange
or quotation system, (f) reasonable fees and disbursements of counsel for the Company, reasonable fees and expenses for independent
certified public accountants retained by the Company (including the expenses of any comfort letters or costs associated with the
delivery by any registered public accounting firms of a comfort letter or comfort letters requested but not the cost of any audit
other than a year end audit) and reasonable fees and expenses of one counsel (and applicable local counsel as necessary) for the
Investor Parties and (g) reasonable fees and expenses of any special experts retained by the Company in connection with such registration.
Notwithstanding the foregoing, the Investor Parties shall be responsible for (i) any underwriting fees, discounts or commissions,
(ii) any commissions of brokers and dealers, and (iii) capital gains, income and transfer taxes, if any, relating to the sale
of Registrable Securities of the Investor Parties.


 



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SECTION
2.4. Registration Procedures.


 


(a)In
connection with the registration of any Registrable Securities pursuant to this Agreement:


 


(i)The
Company shall prepare and file with the SEC a Registration Statement with respect to such Registrable Securities as provided herein,
make all required filings with FINRA and use its reasonable best efforts to keep each Registration Statement continuously effective
during the period such Registration Statement is required to remain effective pursuant to the terms of this Agreement; upon the
occurrence of any event that would cause the Registration Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for resale of Registrable Securities during the period such Registration
Statement is required to remain effective pursuant to the terms of this Agreement, the Company shall file promptly an appropriate
amendment to the Registration Statement, a supplement to the Prospectus or a report filed with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A), correcting any such misstatement or omission, and, in the case
of either clause (A) or (B), the Company shall use its reasonable best efforts to cause such amendment to be declared effective
and the Registration Statement and the related Prospectus to become usable for their intended purposes as soon as practicable
thereafter.


 


(ii)The
Company shall prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement effective during the periods provided herein.


 


(iii)The
Company shall advise the Investor Parties promptly (which notice pursuant to clauses (B) through (D) below shall be accompanied
by an instruction to suspend the use of the Prospectus until the Company shall have remedied the basis for such suspension):


 


(A)when
the Prospectus or any Prospectus supplement or post-effective amendment is proposed to be or has been filed, and, with respect
to the Registration Statement or any post-effective amendment thereto, when the same has become effective;


 


(B)of
any request by the SEC or any other Governmental Entity for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto;


 



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(C)of
the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement under the Securities Act
or of the suspension by any state securities commission of the qualification of the Registrable Securities for offering or sale
in any jurisdiction, or the threatening or initiation of any proceeding for any of the preceding purposes;


 


(D)of
the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose; or


 


(E)when
the Company becomes aware of the happening of any event as a result of which the applicable Registration
Statement or the Prospectus included in such Registration Statement (as then in effect)
contains any untrue statement of a material fact or omits to state a material fact necessary to make the
statements therein (in the case of such Prospectus or any preliminary Prospectus,
in light of the circumstances under which they were made) not misleading, when any Issuer Free Writing Prospectus includes information
that may conflict with the information contained in the Registration Statement, or, if for any other reason
it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus
in order to comply with the Securities Act. The Company shall, unless any Registrable Securities shall be
in book-entry form only, cooperate with the Investor Parties to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive legends (unless required by applicable securities
Laws), and enable such Registrable Securities to be in such denominations and registered in such names as the Investor Parties
may request at least two (2) Business Days before any sale of Registrable Securities. In connection therewith, if reasonably required
by the Company’s transfer agent, the Company shall promptly deliver any authorizations, certificates and directions required
by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale
by the holder of such shares of Registrable Securities under the Registration Statement.


 


(iv)The
Company shall use its reasonable best efforts to promptly register or qualify any Registrable Securities under such other securities
or blue sky laws of such jurisdictions within the United States as any Investor Party reasonably requests and which may be reasonably
necessary or advisable to enable such Investor Party to consummate the disposition in such jurisdictions of the Registrable Securities
owned by such Investor Parties, keep such registrations or qualifications in effect for so long as the Registration Statement
remains in effect and do any and all other acts and things which may be reasonably necessary or advisable to enable such Investor
Parties to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Investor Parties; provided,
however, that the Company will not be required to (A) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this Agreement, (B) subject itself to taxation in any jurisdiction where it would
not otherwise be subject to taxation but for this Agreement or (C) consent to general service of process in any jurisdiction where
it would not otherwise be subject to such service but for this Agreement.


 



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(v)The
Company shall use its reasonable best efforts to promptly cause any Registrable Securities covered by a Registration Statement
to be registered with or approved by such other Governmental Entity within the United States as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such Registrable Securities in accordance with the intended methods
of disposition set forth in such Registration Statement.


 


(vi)The
Company shall, in the event that any Investor Party advises the Company that the Investor Party intends to distribute any Registrable
Securities by means of an underwritten offering, whether pursuant to Sections 2.1, or 2.2, enter into an underwriting
agreement in customary form, scope and substance and take all such other actions reasonably requested by such Investor Party or
by the managing underwriter(s), if any, to expedite or facilitate the underwritten disposition of such Registrable Securities
and deliver such documents and certificates as may be reasonably requested by such Investor Party, its counsel and the managing
underwriter(s), if any.


 


(b)No
Investor Party by acquisition of a Registrable Security shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement, or to receive a Prospectus relating thereto, unless it has furnished the Company with a Notice and
Questionnaire (including the information required to be included in such Notice and Questionnaire) and the information set forth
in the next sentence. The Company may require the Investor Parties selling Registrable Securities pursuant to a Registration Statement
to furnish to the Company such information regarding the Investor Parties and the distribution of such Registrable Securities
as the Company may from time to time reasonably require for inclusion in such Registration Statement. The Investor Parties shall
promptly furnish to the Company all information required to be disclosed in order to make the information previously furnished
to the Company by the Investor Parties not misleading. Any sale of any Registrable Securities by such Investor Parties shall constitute
a representation and warranty by such Investor Party that the information relating to the Investor Party and its plan of distribution
is as set forth in the Prospectus delivered in connection with such disposition, that such Prospectus does not as of the time
of such sale contain any untrue statement of a material fact relating to or provided by such Investor Party or its plan of distribution
and that such Prospectus does not as of the time of such sale omit to state any material fact relating to or provided by the Investor
Party or its plan of distribution necessary to make the statements in such Prospectus, in light of the circumstances under which
they were made, not misleading. The Company may exclude from such Registration Statement the Registrable Securities of any Investor
Party that fails to furnish such information within a reasonable time after receiving such request. The Company shall not include
in any Registration Statement any information regarding, relating to or referring to such Investor Party or its plan of distribution
without the approval of such Investor Party in writing.


 


(c)No
Investor Party shall use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with the
sale of Registrable Securities without the prior written consent of the Company (which consent shall not be unreasonably withheld,
conditioned or delayed).


 



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SECTION
2.5. Lock-Up Agreement. In connection with each registration or sale of Registrable Securities pursuant to Section 2.1
or 2.2 conducted as an underwritten offering, each Management Stockholder agrees, if requested, to become bound by and to execute
and deliver a lock-up agreement with the underwriter(s) of such underwritten offering restricting such Management Stockholder’s
right to (a) Transfer, directly or indirectly, any equity securities of the Company held by such Management Stockholder and (b)
enter into any swap or other arrangement that transfers to another any of the economic consequences of ownership of such securities
during the period commencing on the date of the final Prospectus relating to the underwritten offering and ending on the date
specified by the underwriters (such period not to exceed one hundred twenty (120) days plus, in each case, such additional period
as may be requested by the Company or an underwriter to accommodate regulatory restrictions on the publication or other distribution
of research reports and analyst recommendations and opinions, if applicable).


 


SECTION
2.6. Indemnification.


 


(a)The
Company shall indemnify and hold harmless, to the fullest extent permitted by Law, the Investor Parties, the officers, directors,
partners (limited and general), members, managers, representatives, agents and employees of the Investor Parties, each Person
who could be deemed to control (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the
Investor Parties, each underwriter (including the Investor Parties if they are deemed to be an underwriter pursuant to any SEC
comments or policies), if any, and each Person who controls (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act) such underwriter (collectively, the “Investor Party Indemnitees”), from and against
all losses, claims, damages, liabilities and expenses (collectively, “Losses”) in connection with any sale
of Registrable Securities pursuant to a Registration Statement arising out of or based upon (i) any violation or alleged violation
of the Securities Act or any rule or regulation promulgated thereunder by the Company or any of its Affiliates, employees, officers,
directors or agents or (ii) any untrue or alleged untrue statement of a material fact contained in any Registration Statement
or preliminary or final Prospectus relating to the registration of such Registrable Securities or any amendment or supplement
thereto or any document incorporated by reference therein or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made,
not misleading; provided, however, that the Company shall not be liable to such Investor Party Indemnitee in any
such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon (A) an untrue statement
or alleged untrue statement or omission or alleged omission made in such Registration Statement, including any such preliminary
or final Prospectus contained therein or any such amendments or supplements thereto, or contained in any free writing prospectus
(as such term is defined in Rule 405 under the Securities Act) prepared by the Company or authorized by it in writing for use
by such Investor Party Indemnitee (or any amendment or supplement thereto), in reliance upon and in conformity with information
regarding such Investor Party Indemnitee or its plan of distribution or ownership interests which was furnished in writing to
the Company by the Investor Party expressly for inclusion in such Registration Statement, including any such preliminary or final
Prospectus contained therein or any such amendments or supplements thereto, unless the Company failed to correct such information
to make it not misleading following notification by the Investor Party prior to the filing of such Registration Statement or Prospectus,
(B) offers or sales effected by or on behalf of such Investor Party Indemnitee “by means of” (as defined in Rule 159A
under the Securities Act) a “free writing prospectus” (as defined in Rule 405 under the Securities Act) that was not
authorized in writing by the Company or (C) the failure of any Investor Party Indemnitee to deliver or make available to a purchaser
of Registrable Securities a copy of any Registration Statement, including any preliminary or final Prospectus contained therein
or any amendments or supplements thereto (if the same was required by applicable Law to be delivered or made available); provided
that the Company shall have delivered to such Investor Party Indemnitee such Registration Statement, including such preliminary
or final Prospectus contained therein and any amendments or supplements thereto.


 



    	 	13	 



     

    

 


(b)In
connection with any Registration Statement in which an Investor Party is participating by registering Registrable Securities,
such Investor Party shall indemnify and hold harmless, to the fullest extent permitted by Law, severally and not jointly, the
Company, the officers, directors, agents, representatives or other employees of the Company, each Person who controls (within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company, each underwriter, if any, and
each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) such underwriter,
from and against all Losses, as incurred, arising out of or based on any untrue or alleged untrue statement of a material fact
contained in any such Registration Statement or preliminary or final Prospectus relating to the registration of such Registrable
Securities or any amendment or supplement thereto or any document incorporated by reference therein, or any omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading, in each case solely to the extent that such untrue or alleged untrue
statement or omission or alleged omission is made in such Registration Statement or in any preliminary or final Prospectus contained
therein or any such amendments or supplements thereto or contained in any free writing prospectus (as such term is defined in
Rule 405 under the Securities Act) in reliance upon and in conformity with written information furnished to the Company by the
Investor Parties expressly for inclusion in such document, provided, that that this Section 2.6(c) will not apply to any
untrue statements or omissions that the Investor Party gave notice of such fact to the Company prior to filing of such Registration
Statement or Prospectus.


 


(c)If
any Person shall be entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall
give prompt notice to the party from which such indemnity is sought (the “Indemnifying Party”) of any claim
or of the commencement of any action with respect to which such Indemnified Party seeks indemnification or contribution pursuant
hereto; provided, however, that the delay or failure to so notify the Indemnifying Party shall not relieve the Indemnifying
Party from any obligation or liability except to the extent that the Indemnifying Party has been actually prejudiced by such delay
or failure. The Indemnifying Party shall have the right, exercisable by giving written notice to an Indemnified Party promptly
after the receipt of written notice from such Indemnified Party of such claim or action, to assume, at the Indemnifying Party’s
expense, the defense of any such action, with counsel reasonably satisfactory to such Indemnified Party; provided, however,
that an Indemnified Party shall have the right to employ separate counsel in any such action and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless: (i) the Indemnifying
Party agrees to pay such fees and expenses; (ii) the Indemnifying Party fails promptly to assume, or in the event of a conflict
of interest cannot assume, the defense of such action or fails to employ counsel reasonably satisfactory to such Indemnified Party,
in which case the Indemnified Party shall also have the right to employ counsel and to assume the defense of such action or (iii)
in the Indemnified Party’s reasonable judgment a conflict or potential conflict of interest between such Indemnified Party
and Indemnifying Party may exist in respect of such action; provided, further, that the Indemnifying Party shall
not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction,
arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one firm of attorneys
(together with appropriate local counsel) at any time for all of the Indemnified Parties. Whether or not such defense is assumed
by the Indemnifying Party, neither the Indemnifying Party nor the Indemnified Party will be subject to any liability for, or otherwise
effect, any settlement made without the consent of the other (but such consent shall not be unreasonably withheld, conditioned
or delayed).


 



    	 	14	 



     

    

 


(d)Neither
Party shall settle, compromise, discharge or consent to an entry of judgment with respect to a claim or liability subject to indemnification
under this Section 2.5 without the other Parties’ prior written consent (which consent shall not be unreasonably
withheld, conditioned or delayed); provided that the Indemnifying Party may agree without the prior written consent of
the Indemnified Party to any settlement, compromise, discharge or consent to an entry of judgment, in each case that relates only
to money damages and by its terms obligates the Indemnifying Party to pay the full amount of the liability in connection with
such claim and which unconditionally releases the Indemnified Party from all liability in connection with such claim.


 


(e)If
the indemnification provided for in this Section 2.5 is unavailable to hold harmless each of the Indemnified Parties against
any losses, claims, damages, liabilities and expenses to which such parties may become subject under the Securities Act, then
the Indemnifying Party shall, in lieu of indemnifying each party entitled to indemnification hereunder, contribute to the amount
paid or payable by such party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate
to reflect the relative fault of the Indemnifying Party on the one hand and such Indemnified Parties on the other in connection
with the statements or omissions or alleged statements or omissions that resulted in such losses, claims, damages, liabilities
or expenses. The relative fault of such parties shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact, or omission or alleged omission to state a material fact, relates to information
supplied by or concerning the Indemnifying Party on the one hand, or by such Indemnified Party on the other, and such party’s
relative intent, knowledge, access to information and opportunity to have corrected or prevented such statement or omission. No
Person guilty of fraudulent misrepresentation (within the meaning of the Securities Act) shall be entitled to contribution from
any Person that is not guilty of such fraudulent misrepresentation.


 


SECTION
2.7. Miscellaneous.


 


(a)With
a view to making available the benefits of certain rules and regulations of the SEC which may at any time permit the sale of the
Registrable Securities to the public without registration, the Company agrees, so long as there are outstanding Registrable Securities,
to use its reasonable best efforts to:


 


(i)make
and keep public information available, as those terms are understood and defined in Rule 144 under the Securities Act or any similar
or analogous rule promulgated under the Securities Act, at all times after the effective date of this Agreement;


 



    	 	15	 



     

    

 


(ii)file
with the SEC in a timely manner all reports and other documents as the SEC may prescribe under the Exchange Act at any time while
the Company is subject to such reporting requirements of the Exchange Act; and


 


(iii)furnish
to the Investor Parties upon a reasonable request a written statement by the Company as to its compliance with the reporting requirements
of Rule 144 and of the Exchange Act; a copy of the most recent annual or quarterly report of the Company; and such other reports
and documents as any Investor Party may reasonably request in availing itself of any rule or regulation of the SEC allowing it
to sell any such Registrable Securities without registration.


 


(b)Subject
to the provisions hereof, in the event the Company proposes to enter into an underwritten public offering, the Investor Parties
shall enter into a customary agreement with the managing underwriters not to effect any sale or distribution of equity securities
of the Company, or any securities convertible, exchangeable or exercisable for or into such securities, during the period beginning
up to two (2) days prior to the date of such offering and extending for up to 180 days following the effective date of such offering
if so requested by the underwriters. The Company may impose stop-transfer restrictions with respect to the securities subject
to the foregoing restriction until the end of the required stand-off period and shall lift such stop-transfer restrictions immediately
upon the end of such period.


 


ARTICLE
III

OTHER RIGHTS


 


SECTION
3.1. Board Observation Rights.


 


(a)For
so long as the Ownership Percentage (calculated as described in Section 3.3(a) below) of the Bravo Investor Parties equals or
exceeds five percent (5%), and provided that the Bravo Investor Parties shall not have two nominees serving on the Company’s
Board of Directors, the Bravo Investor Parties shall be entitled to designate a representative who the Company shall permit to
attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative
copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same
manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust
and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves
the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such
information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel
or result in disclosure of trade secrets or a conflict of interest.


 



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(b)For
so long as the Ownership Percentage (calculated as described below) of the Middlemarch Investor Parties equals or exceeds two
and one-quarter percent (2.25%) and the Bravo Investor Parties retain the right to appoint an observer under Section 3.1(a), the
Middlemarch Investor Parties shall be entitled to designate a representative who the Company shall permit to attend all meetings
of its Board of Directors in a nonvoting, nonparticipating observer capacity and, in this respect, shall give such representative
copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same
manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust
and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves
the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such
information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel
or result in disclosure of trade secrets or a conflict of interest or otherwise be detrimental to the Company. For purposes of
this Agreement, “Ownership Percentage” of the Middlemarch Investor Parties shall mean, at any time of determination,
the percentage equal to (i) the number of shares of (w) Common Stock issuable upon the conversion of the Preferred Stock plus
(x) Common Stock issued upon the conversion of the Preferred Stock, each that the Middlemarch Investor Parties Beneficially Own,
divided by (ii) the total number of shares of (x) Common Stock issued and outstanding plus (y) Common Stock issuable upon the
conversion of the Preferred Stock then outstanding plus (z) Common Stock issuable upon the conversion of the Series 1 Preferred
Stock then outstanding.


 


SECTION
3.2. Right of First Offer; Certain Approval Rights. If at any time the Company proposes to grant, issue or sell any Equity
Securities (in each case, other than any Permitted Issuances) to any Person (the “Purchase Rights”) then it
shall give the Investor Parties written notice of its intention to do so, describing the Equity Securities and the price and the
terms and conditions upon which the Company proposes to issue the same. Each Investor Party shall be entitled to acquire, upon
the terms applicable to such Purchase Rights and subject to the preemptive rights of Waterfall Asset Management LLC set forth
in the Waterfall Rights Agreement, its Pro Rata Share of the Equity Securities proposed to be granted, issued or sold by the Company
triggering the Purchase Rights. Each Investor Party shall have fifteen (15) Business Days from the giving of such notice to agree
to purchase its Pro Rata Share of the Equity Securities for the price and upon the terms and conditions specified in the notice
by giving written notice to the Company and stating therein the quantity of such Equity Securities to be purchased. If not all
of the Investor Parties elect to purchase their Pro Rata Share of the Equity Securities subject to the Purchase Rights, then the
Company shall promptly notify in writing the Investor Parties who have elected to purchase their full Pro Rata Share of such Equity
Securities and shall offer such Investor Parties the right to acquire such unsubscribed shares on a pro rata basis (based on Pro
Rata Shares). The Investor Parties shall have five (5) Business Days after receipt of such notice to notify the Company of their
election to purchase all or a portion thereof of the unsubscribed shares. If the Investor Parties have, in the aggregate elected
to purchase more than the number of unsubscribed shares being offered in such notice, then the unsubscribed shares shall be allocated
according to each Investor Party’s Pro Rata Share up to the number of unsubscribed shares set forth in the notice to the
Investor Parties. If the Investor Parties fail to exercise in full the Purchase Rights, the Company shall have no obligation to
sell the Equity Securities subject to Purchase Rights to the Investor Parties and shall have ninety (90) days thereafter to sell
the Equity Securities subject to Purchase Rights at a price and upon terms and conditions no more favorable to the purchasers
thereof than specified in the Company’s notice to the Investor Parties pursuant to this Section 3.2. If the Company
has not sold such Equity Securities subject to Purchase Rights within such ninety (90) days, the Company shall not thereafter
issue or sell any Equity Securities (other than Permitted Issuances) without first again complying with this Section 3.2.
The provisions of this Section 3.2 shall terminate if the Ownership Percentage of the Bravo Investor Parties falls below
twenty percent (20%).


 



    	 	17	 



     

    

 


SECTION
3.3. Investor Director.


 


(a)Investor
Party Nomination. For so long as the Ownership Percentage of the Bravo Investor Parties equals or exceeds ten percent (10%),
the Bravo Investor Parties shall be entitled to nominate one (1) director to the Board (the “Investor Director”).
For purposes of this Agreement, “Ownership Percentage” of the Bravo Investor Parties shall mean, at any time
of determination, the percentage equal to (i) the number of shares of (w) Common Stock issuable upon the conversion of the Preferred
Stock plus (x) Common Stock issued upon the conversion of the Preferred Stock, each that the Bravo Investor Parties Beneficially
Own, divided by (ii) the total number of shares of (x) Common Stock issued and outstanding plus (y) Common Stock issuable upon
the conversion of the Preferred Stock then outstanding plus (z) Common Stock issuable upon the conversion of the Series 1 Preferred
Stock then outstanding. For the avoidance of doubt, the calculation of “Ownership Percentage” for the purposes of
this Agreement shall be made without regard to the 45 day delay in the grant of voting rights and conversion rights set forth
in Sections 4 and 5, respectively, of the Certificate of Designations of the Preferred Stock. For so long as the Ownership Percentage
of the Bravo Investor Parties equals or exceeds twenty two percent (22%), the Bravo Investor Parties shall be entitled to nominate
a second director to the Board, so long as such nomination is consistent with the independence and other applicable requirements
of the principal trading market of the Company’s Common Stock or under applicable Law. The Company will use commercially
reasonable efforts to ensure that the Board has a sufficient number of independent directors such that the Bravo Investor Parties’
nomination of a second director to the Board is not inconsistent with the independence and other applicable requirements of the
principal trading market of the Company’s Common Stock or under applicable Law.


 


(b)Company
Nomination. In accordance with the provisions of Section 3.3(a), at each meeting of the Company’s stockholders
at which the election of directors is to be considered, the Company shall nominate the Investor Director(s) designated by the
Bravo Investor Parties for election to the Board by the holders of Voting Stock and solicit proxies from the Company’s stockholders
in favor of the election of the Investor Director(s). The Company shall use reasonable best efforts to cause each Investor Director
to be elected to the Board (including voting all unrestricted proxies in favor of the election of such the Investor Director and
including recommending approval to the stockholders of the Company of such Investor Director’s appointment to the Board)
and shall not take any action designed to diminish the prospects of such Investor Director of being elected to the Board.


 


(c)Removal.
Each Investor Director appointed pursuant to this Section 3.3 shall continue to hold office until the next annual meeting
of the stockholders of the Company and until his or her successor is elected and qualified in accordance with this Section
3.3 and the Bylaws, unless such Investor Director is earlier removed from office or at such time as such Investor Director’s
death, resignation, retirement or disqualification. The Company shall use reasonable best efforts to ensure that an Investor Director
is removed only if so directed in writing by the Bravo Investor Parties, unless otherwise required by this Section 3.3
or applicable Law.



 






    	 	18	 



     

    

  







(d)Vacancies.
In the event of a vacancy on the Board resulting from the death, disqualification, resignation, retirement or termination of the
term of office of an Investor Director, the Company shall use reasonable best efforts to cause the Board to fill such vacancy
or new directorship with a representative designated by the Bravo Investor Parties as provided hereunder, in either case, to serve
until the next annual or special meeting of the stockholders (and at such meeting, such representative, or another representative
designated by such holders, will be nominated to be elected to the Board in the manner set forth in Section 3.3(b)). If
the Bravo Investor Parties fail or decline to fill the vacancy, then the directorship shall remain open until such time as the
Bravo Investor Parties elect to fill it with a representative designated hereunder.


 


SECTION
3.4. Director Fees and Expenses. Each Investor Director shall be entitled to reimbursement of expenses incurred in such
capacities on the same basis as the Company provides such reimbursement to the other non-management members of its Board but such
Investor Directors shall not otherwise be entitled to compensation for their service on the Board.


 


SECTION
3.5. Tag-Along Rights.


 


(a)Subject
to the tag-along rights set forth in Section 3.5 of the Waterfall Rights Agreement, if a Management Stockholder (the “Transferring
Stockholder”) proposes to Transfer all or any portion of its shares of Common Stock (a “Proposed Transfer”)
(other than (i) to a Permitted Transferee, (ii) pursuant to Rule 144, or (iii) pursuant to a offering registered under the Securities
Act), each Investor Party shall have the right to participate in the Transferring Stockholder’s Transfer by Transferring
up to a pro rata portion of its shares (determined by multiplying (a) the number of shares owned by such Tagging Stockholder (as
defined below) plus (b) the number of shares of Common Stock issuable upon conversion of the Preferred Stock owned by such Tagging
Stockholder by a fraction, the numerator of which is the number of shares proposed to be sold by the Transferring Stockholder
and the denominator of which is the total number of shares owned by the Transferring Stockholders and the Investor Parties) to
the proposed transferee (the “Proposed Transferee”) (each Investor Party that exercises its rights under this
Section 3.5, a “Tagging Stockholder”).


 



    	 	19	 



     

    

 


(b)The
Transferring Stockholder shall give written notice (a “Tag-Along Notice”) to each Investor Party of a Proposed
Transfer, setting forth the number of shares of Common Stock proposed to be so Transferred, the name and address of the Proposed
Transferee, the proposed amount and form of consideration and other terms and conditions of payment offered by the Proposed Transferee.
The Transferring Stockholder shall deliver or cause to be delivered to each Investor Party copies of all Transaction Documents
relating to the Proposed Transfer as the same become available. The tag-along rights provided by this Section 3.5 must
be exercised by an Investor Party within a period of ten (10) days from the date of the Tag-Along Notice, by delivery of a written
notice to the Transferring Stockholder indicating its desire to exercise its rights and specifying the number of shares of Common
Stock it desires to Transfer. If the Transferring Stockholder is unable to cause the Proposed Transferee to purchase all the shares
of Common Stock proposed to be Transferred by the Transferring Stockholder and the Tagging Stockholders, then the number of shares
of Common Stock that each such stockholder is permitted to sell in such Proposed Transfer shall be reduced pro rata based on the
number of shares of Common Stock proposed to be Transferred by such stockholder relative to the aggregate number of shares of
Common Stock proposed to be Transferred by all stockholders participating in such Proposed Transfer. The Transferring Stockholder
shall have a period of ninety (90) days following the expiration of the three (3) Business Day period mentioned above to enter
into a definitive agreement to sell all the shares of Common Stock agreed to be purchased by the Proposed Transferee on the terms
specified in the notice required by the first sentence of this Section 3.5(b). If the Proposed Transferee agrees to purchase
more shares of Common Stock than specified in the Tag-Along Notice in the Proposed Transfer, the Investor Parties shall also have
the same right to participate in the Transfer of such shares of Common Stock that are in excess of the amount set forth on the
Tag-Along Notice in accordance with this Section 3.5.


 


(c)Any
Transfer of shares of Common Stock by a Tagging Stockholder to a Proposed Transferee pursuant to this Section 3.5 shall
be on the same terms and conditions (including, without limitation, price, time of payment and form of consideration) as to be
paid to the Transferring Stockholder; provided that in order to be entitled to exercise its tag-along right pursuant to
this Section 3.5, each Tagging Stockholder must agree to make to the Proposed Transferee representations, warranties, covenants,
indemnities and agreements the same mutatis mutandis as those made by the Transferring Stockholder in connection with the
Proposed Transfer (other than any non-competition, non-solicitation or similar agreements or covenants that would bind the Tagging
Stockholder or its Affiliates), and agree to the same conditions to the Proposed Transfer as the Transferring Stockholder agrees,
it being understood that all such representations, warranties, covenants, indemnities and agreements shall be made by the Transferring
Stockholder and each Tagging Stockholder severally and not jointly and that the aggregate amount of the liability of the Tagging
Stockholder shall not exceed, except with respect to individual representations, warranties, covenants, indemnities and other
agreements of the Tagging Stockholder as to the unencumbered title to its shares of Common Stock and the power, authority and
legal right to Transfer such Common Stock, such Tagging Stockholder’s pro rata share of any such liability
to be determined in accordance with such Tagging Stockholder’s portion of the total number of shares of Common Stock included
in such Transfer; provided that, in any event the amount of liability of any Tagging Stockholder shall not exceed the proceeds
such Tagging Stockholder received in connection with such Transfer. Each Tagging Stockholder shall be responsible for its proportionate
share of the costs of the Proposed Transfer to the extent not paid or reimbursed by the Proposed Transferee or the Company.


 



    	 	20	 



     

    

 


SECTION
3.6. Matters Requiring Investor Party Approval. For so long as the Ownership Percentage (calculated as described above)
of the Bravo Investor Parties equals or exceeds twenty percent (20%), the Company hereby covenants and agrees that it shall not,
without prior written approval of the Bravo Investor Parties holding at least a majority of the number of shares of (i) Common
Stock issuable upon the conversion of the Preferred Stock plus (ii) Common Stock issued upon the conversion of the Preferred Stock,
Beneficially Owned by all Bravo Investor Parties, take any of the following actions:


 


(a)Sell,
assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company to another
Person at a valuation below the per share valuation paid by the Investors for the Preferred Stock pursuant to the Subscription
Agreement;


 


(b)Consummate
a stock purchase, merger, consolidation or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than fifty percent (50%) of the
of the total voting power or economic interests of the Common Stock on a fully diluted basis at a valuation below the per share
valuation paid by the Investors for the Preferred Stock pursuant to the Subscription Agreement; and


 


(c)Increase
the size of the Board beyond nine (9) members.


 


SECTION
3.7. Insurance. The Company has in place as of the date hereof, with financially sound and reputable insurers, Directors
and Officers liability insurance and will use commercially reasonable efforts to cause such insurance policies to be maintained,
in an amount and on terms and conditions satisfactory to the Board of Directors until such time as the Board of Directors determines
that such insurance should be discontinued.





 


ARTICLE
IV

MISCELLANEOUS


 


SECTION
4.1. Amendment and Modification. No term of this Agreement may be amended or modified without the prior written consent
of the Company and Investor Parties holding a majority of the Registrable Securities held by all Investor Parties. No provision
of this Agreement may be waived except in a writing executed and delivered by the Party against whom such waiver is sought to
be enforced. Any amendment or waiver effected in accordance with this Section 4.1 shall be binding upon the Investor Parties
and the Company.


 


SECTION
4.2. Successors and Assigns; Binding Effect. The provisions of this Agreement shall be binding upon and inure to the benefit
of the Investor Parties and their respective successors and assigns. This Agreement may not be assigned by any Party hereto without
the prior written consent of the Company and the Investor Parties, except that (1) in connection with the transfer of its shares
of Preferred Stock (or underlying Common Stock) to an Affiliate any Investor Party may transfer or assign, its rights hereunder
to such Permitted Investor Transferee and (2) in connection with the sale of its shares of Preferred Stock (or underlying Common
Stock) to a Person that together with its Affiliates is acquiring from the Investor Parties Registrable Securities which together
represent at least five percent (5%) of the total voting power of the Company, any Investor Party may transfer or assign its rights
with respect to such Registrable Securities under Article II hereof to such purchaser (any such transferees under the forgoing
clause (1) or (2), a “Permitted Investor Transferee”); provided that (a) such Investor Party complies with
all Laws applicable thereto and provides written notice of assignment to the Company promptly after such assignment is effected,
and (b) the transferee agrees in writing to be bound by this Agreement as if it were a party hereto and an Investor Party hereunder.
For the avoidance of doubt, the rights set forth herein applicable to any Investor Party shall, as contemplated by this Section
4.2, inure to any Permitted Investor Transferee of an Investor Party.


 



    	 	21	 



     

    

 


SECTION
4.3. Confidential Information; Public Announcements.


 


(a)No
public announcement or disclosure (including any general announcements) will be made by any member of the Company or its Affiliates
or the Investor Parties with respect to this Agreement, the subject matter of this Agreement, or otherwise communicate with any
news media regarding this Agreement or the subject matter of this Agreement without the prior written consent of the Company and
the Bravo Investor Parties. The Company agrees that no member of the Company or its Affiliates may, directly or indirectly, use
in advertising, publicity or otherwise the name of the Bravo Investor Parties, any partner or employee of the Bravo Investor Parties
or any member of the Bravo Investor Parties without the prior written consent of Bravo Investor Parties in each instance.


 


(b)Each
of the parties shall treat as strictly confidential this Agreement and not disclose or use any information received or obtained
as a result of entering into or performing this Agreement or any Transaction Document which relates to: (i) the provisions or
subject matter of any Transaction Document or any document referred to therein; (ii) the negotiations relating to any Transaction
Document; and (iii) the business, financial or other affairs (including future plans and targets) of any member of the Company
or its Affiliates or the Investor Parties.


 


(c)Nothing
in this Section 4.3 shall restrict or prohibit any disclosure by the Investor Parties or the Company (i) to their respective
representatives, (ii) if required to do so by any law, court, regulation, subpoena or other legal process, (iii) if its attorneys
advise it that it has a legal obligation to do so under Applicable Law or (iv) to implement or enforce this Agreement; provided,
that in the event of any disclosure contemplated by (ii) or (iii) above, to the extent permitted by Applicable Law, the disclosing
or announcing party will give the non-disclosing party reasonable prior notice and the opportunity to review and comment upon
such disclosure, to the extent practicable, in advance of making any such disclosure or announcement. In addition, this Section
4.3 shall not restrict or prohibit any disclosure by any member of the Investor Parties to its or its Affiliates’ actual
or prospective investors who are bound by confidentiality undertakings restricting disclosure regarding this Agreement or the
transactions contemplated hereby.


 


SECTION
4.4. Severability. If any provision of this Agreement or the application of any such provision to any Person or circumstance
shall be declared by any court of competent jurisdiction to be invalid, illegal, void or unenforceable in any respect, all other
provisions of this Agreement, or the application of such provision to Persons or circumstances other than those as to which it
has been held invalid, illegal, void or unenforceable, shall nevertheless remain in full force and effect and will in no way be
affected, impaired or invalidated thereby. Upon such determination that any provision, or the application of any such provision,
is invalid, illegal, void or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the Parties as closely as possible to the fullest extent permitted by Law in an acceptable manner.


 






    	 	22	 



     

    

  


SECTION
4.5. Notices and Addresses. Unless otherwise provided, any notice or request required or permitted to be delivered under
this Agreement shall be given in writing and shall be deemed effectively given as hereinafter described (a) if given by personal
or Electronic Delivery, upon delivery provided that no undeliverable message is promptly received back, (b) if given by facsimile,
upon receipt of confirmation of a completed transmittal, (c) if given by mail, upon the earlier of (i) actual receipt of such
notice by the intended recipient or (ii) three (3) Business Days after such notice is deposited in first class mail, postage prepaid,
and (d) if by an internationally recognized overnight air courier, one (1) Business Day after delivery to such carrier. All notices
shall be addressed to the Party to be notified at the address as follows, or at such other address as such Party may designate
by ten (10) days’ advance written notice to the other Party:


 


If
to the Company or the Management Stockholder:



FlexShopper, Inc.

2700 North Military Trail, Ste. 200





Boca
Raton, FL 33431 


Attention:Chief
Executive Officer

Email:       brad.bernstein@flexshopper.com




 


With
a copy to (which shall not constitute notice to the Company):



K&L Gates, LLP


214
N. Tryon Street, 47th Floor


Charlotte,
NC 28202

Attention:Mark Busch

Email:mark.busch@klgates.com

Facsimile: 704-353-3694


  


If
to the Investor Parties:



BRAVO Strategies II LLC

650 Newport Center Drive

Newport Beach, CA 92660


 


Attention: Elena
Branzburg

Email:        Elena.Branzburg@pimco.com

and:


 


Attention:Daniel
Ballen

Email:       Daniel.Ballen@pimco.com




 


and:


 


MCP-FS,
L.P.

c/o Middlemarch Partners

125 Park Avenue, Suite 1700

New York, NY, 10017

Attention:Demetris Papademetriou

Email:dpapademetriou@middlemarchllc.com


 


With
a copy to (which shall not constitute notice to the Investor Parties):



Ropes & Gray LLP

1211 Avenue of the Americas

New York, NY 10036

Attention:Robb Tretter

Email:       robb.tretter@ropesgray.com

Facsimile: 646-728-2679



 



    	 	23	 



     

    

 


SECTION
4.6. Governing Law; Consent to Jurisdiction. This Agreement and any action or dispute arising under or related in any way
to this Agreement, the relationship of the Parties, the transactions leading to this Agreement or contemplated hereby and/or the
interpretation and enforcement of the rights and duties of the Parties hereunder or related in any way to the foregoing, shall
be governed by and construed in accordance with the internal, substantive Laws of the State of New York applicable to agreements
entered into and to be performed solely within such state without giving effect to the principles of conflict of Laws thereof.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES THAT JURISDICTION AND VENUE IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY AY
PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING ANY SUIT, ACTION OR PROCEEDING SEEKING EQUITABLE RELIEF) SHALL PROPERLY
AND EXCLUSIVELY LIE IN THE COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR, TO THE EXTENT THE COURTS OF NEW YORK
DO NOT HAVE SUBJECT MATTER JURISDICTION, THE UNITED STATES DISTRICT COURT LOCATED IN NEW YORK CITY. EACH PARTY HERETO FURTHER
AGREES NOT TO BRING ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY COURT OTHER THAN THE COURTS IDENTIFIED IN THE FOREGOING SENTENCE.
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS IN NEW YORK CITY
FOR ITSELF AND IN RESPECT OF ITS PROPERTY WITH RESPECT TO SUCH SUIT, ACTION OR PROCEEDING. THE PARTIES HERETO IRREVOCABLY AGREE
THAT VENUE WOULD BE PROPER IN EACH OF THE FOREGOING COURTS, AND HEREBY WAIVE ANY OBJECTION THAT ANY SUCH COURT IS AN IMPROPER
OR INCONVENIENT FORUM FOR THE RESOLUTION OF SUCH SUIT, ACTION OR PROCEEDING.


 


SECTION
4.7. WAIVER OF JURY TRIAL.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION,
CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED
UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT
IT HAS BEEN INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 4.9 CONSTITUTES A MATERIAL INDUCEMENT
UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT. ANY PARTY HERETO MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.9 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.


 



    	 	24	 



     

    

 


SECTION
4.8. Headings. The headings in this Agreement are for convenience of reference only and shall not constitute a part of
this Agreement, nor shall they affect its meaning, construction or effect.


 


SECTION
4.9. Counterparts; Electronic Delivery. This Agreement may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement and any signed agreement
or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, to the extent delivered by
means of a telecopy machine or electronic mail (any such delivery, an “Electronic Delivery”), shall be treated
in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect
as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement
or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties.
No party hereto or to any such agreement or instrument shall raise (a) the use of Electronic Delivery to deliver a signature or
(b) the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery,
as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense
related to lack of authenticity.


 


SECTION
4.10. Further Assurances. Each Party shall cooperate and take such action as may be reasonably requested by another Party
in order to carry out the provisions and purposes of this Agreement and the transactions contemplated hereby.


 


SECTION
4.11. Remedies. Each Party hereby acknowledges and agrees that the failure of the other Party to perform its respective
agreements and covenants hereunder, including any failure to take all actions as are necessary by such Party to consummate the
transactions contemplated hereby (to the extent required to be taken by such Party under this Agreement), will cause irreparable
injury to the other Party, for which damages, even if available, will not be an adequate remedy. Accordingly, each Party hereby
agrees that any other Party is entitled to equitable relief by any court of competent jurisdiction to compel performance of such
Party’s obligations without the need to prove actual damages or post a bond or other security.


 


SECTION
4.12.No Third Party Beneficiaries. This Agreement shall be binding upon and inure to the benefit of each party hereto and
to their respective successors and permitted assigns, and, except as provided in Section 2.5 and Section 4.5, nothing in this
Agreement, express or implied, is intended to or shall confer upon any other Person any other right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.


 


SECTION
4.13.Entire Agreement. This Agreement (including any Schedules and Exhibits hereto) constitutes the full and entire understanding
and agreement among the parties with respect to the subject matter hereof, and any other written or oral agreement relating to
the subject matter hereof existing between the parties is expressly canceled.


 


SECTION
4.14 Middlemarch Effectiveness. Middlemarch shall become a party to this Agreement upon MCP-FS, L.P.’s execution
of the Middlemarch Subscription Agreement, the consummation of the transactions therein and the execution by MCP-FS, L.P. of a
counterpoint signature page hereto.





 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]


 






    	 	25	 



     

    

 





IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date and year first above written.


 





	 	FLEXSHOPPER,
    INC.
	 	 	 
	 	By:	/s/
    Brad Bernstein 
	 		Name:
    Brad Bernstein
	 		Title:
      Chief Executive Officer



 




The undersigned hereby execute this Agreement solely to agree to be bound by the provisions of Sections 2.5 and 3.5 hereof.


 





	 	MANAGEMENT
    STOCKHOLDER
	 	 
	 	/s/
    Brad Bernstein
	 	Name:
    Brad Bernstein






 


Signature
Page to the Investor Rights Agreement


 



    	 	26	 



     

    




 


Investor:


  


B2
FIE V LLC


 


	By:	/s/ Harin De Silva	 



Name:
Harin De Silva
 Title: Authorized Signatory



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 



Signature
Page to the Investor Rights Agreement


 


 


 


 


27