Camber Energy, Inc. 10-Q

 

**Exhibit10.32** 

 

EXCHANGEAGREEMENT

 

ThisExchange Agreement (“**Agreement**”) is made and entered into on December 11, 2020 (“**AgreementDate**”), by and between Camber Energy, Inc., a Nevada corporation (“**Company**”), and theinvestor whose name appears below (“**Investor**”).

 

**Recitals**

 

**A.**            Investoris the holder of 2,693 shares of Series C Redeemable Convertible Preferred Stock (“**C Preferred**”) convertibleinto shares of Common Stock of Company (“**Common Stock**”) pursuant to an Amended and Restated Certificateof Designations of Preferences, Powers, Rights and Limitations of Series C Redeemable Convertible Preferred Stock filed by theCompany with the Secretary of State of Nevada on July 8, 2019 (as amended to date, “**C Certificate**”).

 

**B.**            Investorhas at all times fully and completely complied with all of its obligations under the Agreement and the Certificate, and all DeliveryNotices and calculations provided to Company by Investor were and are fully correct and accurate in all respects.

 

**C.**           Company desires to effectuate the Amended and Restated Agreement and Plan of Merger(as amended to date, the “**Merger Agreement**” and the transactions contemplated thereby, the “**Merger**”)with Viking Energy Group, Inc., a Nevada corporation (the “**Merger Party**”), as described in that certainRegistration Statement on Form S-4, File No. 333-238927.

 

**D.**            Asan accommodation to Company and in order to help facilitate implementation of the Merger and continued trading on the NYSE American(the “**Trading Market**”), and to reduce the potential dilutive impact of the C Preferred by reducing thenumber of outstanding shares of C Preferred, Investor is willing to correct the C Certificate as requested by Company and to exchange600 shares (the “**Exchange Shares**”) of its C Preferred for a secured Promissory Note equal to the FaceAmount of the Exchange Shares (the “**Note**”), the obligations of which are secured by a Security Agreement(the “**Security Agreement**”, and together with the Note, the corrected C Certificate and this Agreement,the “**Transaction Documents**”) each of even date herewith, in accordance with the terms hereof.

 

**E.**             Eachparty’s willingness to enter into each of the Transaction Documents is conditioned upon both parties entering into all ofthe Transaction Documents; each party entering into all of the Transaction Documents is an express condition precedent to eachof the Transaction Documents, and neither party would be willing to enter into any of the Transaction Documents without all ofthe others.

 

Agreement

 

Inconsideration of the premises, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged,Company and Investor agree as follows:

 

I.            Definitions.The parties acknowledge the accuracy of the Recitals set forth above, which are incorporated herein by reference. In additionto the terms defined elsewhere in this Agreement, capitalized terms that are not otherwise defined have the meanings set forthin the C Certificate, the Note or the Security Agreement.

 

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TheExchange Shares are hereby exchanged for the Note, the obligations of which are secured by the Security Agreement. Company’stransfer agent is hereby instructed to cancel 600 shares of the C Preferred (the “CancelledShares”). Each party will provide Company’s transfer agent such informationand documents as the Company’s transfer agent may reasonably request in order to facilitate the cancellation of the CancelledShares.

 

 

Withrespect to any agreements relating to the acquisition of the C Preferred (the “PriorAgreements”), the C Preferred and the C Certificate, Investor hereby (a) waives anyand all breaches and defaults that have occurred prior to the Agreement Date or that may continue or occur for 90 days thereafter,including without limitation any failure to have sufficient authorized shares of common stock to issue to Investor, and (b) waivesall rights and remedies with respect to such breaches and defaults. For the avoidance of doubt, the foregoing does not apply toand shall have no effect with regard to any breaches or defaults that may occur or continue more than 90 days after the AgreementDate. 

 

 

A.           RepresentationsRegarding Transaction. Except as set forth under the corresponding section of the DisclosureSchedules, if any, Company hereby represents and warrants to, and as applicable covenants with, Investor as of the Closing:

 

**1.              Organizationand Qualification.** Company and each Subsidiary is an entity duly incorporated or otherwise organized, validly existingand in good standing under the laws of the jurisdiction of its incorporation or organization, as applicable, with the requisitepower and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither Companynor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation,bylaws or other organizational or charter documents, except as would not reasonably be expected to result in a Material AdverseEffect. Each of Company and each Subsidiary is duly qualified to conduct business and is in good standing as a foreign corporationor other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualificationnecessary, except where the failure to be so qualified or in good standing, as the case may be, would not reasonably be expectedto result in a Material Adverse Effect and there is no completed, pending or, to the knowledge of Company, contemplated or threatenedproceeding in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authorityor qualification.

 

**2.              ****Authorization;Enforcement.** Company has the requisite corporate power and authority to enter into and to consummate the transactionscontemplated by each of the Transaction Documents and otherwise to carry out its obligations hereunder or thereunder. The executionand delivery of each of the Transaction Documents by Company and the consummation by it of the transactions contemplated herebyor thereby have been duly authorized by all necessary action on the part of Company and no further consent or action is requiredby Company. Each of the Transaction Documents has been, or upon delivery will be, duly executed by Company and, when deliveredin accordance with the terms hereof, will constitute the valid and binding obligation of Company, enforceable against Companyin accordance with its terms, except (a) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited bylaws relating to the availability of specific performance, injunctive relief or other equitable remedies and (c) insofar as indemnificationand contribution provisions may be limited by applicable law.

 

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**3.              NoConflicts.** The execution, delivery and performance of the Transaction Documents by Company, the issuance and sale of theNote and the consummation by Company of the other transactions contemplated thereby do not and will not (a) conflict with or violateany provision of Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizationalor charter documents, (b) conflict with, or constitute a default (or an event that with notice or lapse of time or both wouldbecome a default) under, result in the creation of any Lien upon any of the properties or assets of Company or any Subsidiary,or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time orboth) of, any material agreement, credit facility, debt or other instrument (evidencing Company or Subsidiary debt or otherwise)or other understanding to which Company or any Subsidiary is a party or by which any property or asset of Company or any Subsidiaryis bound or affected, (c) conflict with or result in a violation of any material law, rule, regulation, order, judgment, injunction,decree or other restriction of any court or governmental authority to which Company or a Subsidiary is subject (including U.S.federal and state securities laws and regulations), or by which any material property or asset of Company or a Subsidiary is boundor affected, or (d) conflict with or violate the terms of any material agreement by which Company or any Subsidiary is bound orto which any property or asset of Company or any Subsidiary is bound or affected; except in the case of each of clauses (b), (c)and (d), such as would not reasonably be expected to result in a Material Adverse Effect.

 

**4.              Litigation.** There is no action, suit, inquiry, notice of violation, proceeding or investigation completed, ongoing, pending, threatenedor, to the knowledge of Company, contemplated against or affecting Company, any Subsidiary or any of their respective propertiesbefore or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, localor foreign) (collectively, an “**Action**”), which would reasonably be expected to adversely affect or challengethe legality, validity or enforceability of any of the Transaction Documents or the sale, issuance, listing, trading or resaleof any Shares on the Trading Market. The Commission has not issued any stop order or other order suspending the effectivenessof any registration statement filed by Company or any Subsidiary under the Exchange Act or the Act.

 

**5.              ****Filings,Consents and Approvals.**Neither Company nor any Subsidiary is required to obtain any consent, waiver, authorization or order of, give any notice to, ormake any filing or registration with, any court or other federal, state, local or other governmental authority or other Personin connection with the execution, delivery and performance by Company of the Transaction Documents, other than required federaland state securities filings and such filings and approvals as are required to be made or obtained under the applicable TradingMarket rules in connection with the transactions contemplated hereby, each of which has been, or if not yet required to be filedwill be, timely filed.

 

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**6.**            **Disclosure;Non-Public Information.**Company will timely file a current report on Form 8-K (“**Current Report**”) describingthe material terms and conditions of this Agreement, a copy of which will be provided to Investor prior to the filing thereof.All information that Company has provided to Investor that constitutes or might constitute material, non-public information willbe included in the Current Report. Notwithstanding any other provision, except for information that will be, and only to the extentthat it actually is, included in the Current Report, (a) neither Company nor any other Person acting on its behalf has providedInvestor or its representatives, agents or attorneys with any information that constitutes or might constitute material, non-publicinformation, including without limitation this Agreement and the Exhibits and Disclosure Schedules hereto, (b) no informationcontained in the Disclosure Schedules constitutes material non-public information and (c) there is no adverse material informationregarding Company that has not been publicly disclosed prior to the Agreement Date. Company understands and confirms that Investorwill rely on the foregoing representations and covenants in effecting transactions in securities of Company. All disclosure providedto Investor regarding Company, its business and the transactions contemplated hereby, including without limitation the DisclosureSchedules, furnished by or on behalf of Company with respect to the representations and warranties made herein are true and correctin all material respects and do not contain any untrue statement of a material fact or omit to state any material fact necessaryin order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

 

**7.           AcknowledgmentsRegarding Investor.** Company’s decision to enter into this Agreement has been based solely on the independent evaluationby Company and its representatives, and Company acknowledges and agrees that:

 

**a.**              Investoris not, has never been, and as a result of the transactions contemplated by the Transaction Documents will not become an officer,director, insider, or control person of Company, or to Company’s knowledge a 10% or greater shareholder or otherwise anaffiliate of Company as defined under Rule 12b-2 of the Exchange Act;

 

**b.**              Investorand its representatives have not made and do not make any representations, warranties or agreements with respect to this Agreement,or the transactions contemplated hereby other than those specifically set forth in **Section III.C** below; Company has notrelied upon, and expressly disclaims reliance upon, any and all written or oral statements or representations made by any personsprior to this Agreement;

 

**c.**              Theconversion of the C Preferred and resale of Conversion Shares will result in dilution, which may be substantial; and Company’sobligation to issue and deliver Conversion Shares in accordance with this Agreement and the C Certificate is absolute and unconditionalregardless of the dilutive effect that such issuances may have; and

 

**d.**              Investoris acting solely in the capacity of arm’s length purchaser with respect to this Agreement and the transactions contemplatedhereby; neither Investor nor any of its Affiliates, agents or representatives has or is acting as a legal, financial, investment,accounting, tax or other advisor to Company, or fiduciary of Company, or in any similar capacity; neither Investor nor any ofits Affiliates, agents or representatives has provided any legal, financial, investment, accounting, tax or other advice to Company;any statement made in connection with this Agreement or the transactions contemplated hereby is not advice or a recommendation,and is merely incidental to Investor’s exchange of the Cancelled Shares and acceptance of the Note.

 

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**8.              Listingand Maintenance Requirements.** The Common Stock is registered pursuant to Section 12 of the Exchange Act, and Company hastaken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the CommonStock under the Exchange Act nor has Company received any notification that the Commission is contemplating terminating such registration.Company has not, in the 12 months preceding the Closing, received notice from the Trading Market on which the Common Stock islisted or quoted to the effect that Company is not in compliance with the listing or maintenance requirements of such TradingMarket, except in connection with notices which relate to compliance issues which have since been cured. Company is, and has noreason to believe that it will not in the foreseeable future continue to be, in compliance with the listing and maintenance requirementsof the Trading Market.

 

 

**1.              ****Organization;Authority.**Investor is an entity validly existing and in good standing under the laws of the jurisdiction of its organization with full right,company power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwiseto carry out its obligations thereunder. The execution, delivery and performance by Investor of the transactions contemplatedby this Agreement have been duly authorized by all necessary company or similar action on the part of Investor. Each TransactionDocument to which it is a party has been, or will be, duly executed by Investor, and when delivered by Investor in accordancewith the terms hereof, will constitute the valid and legally binding obligation of Investor, enforceable against it in accordancewith its terms, except (a) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratoriumand other laws of general application affecting enforcement of creditors’ rights generally, (b) as limited by laws relatingto the availability of specific performance, injunctive relief or other equitable remedies, and (c) insofar as indemnificationand contribution provisions may be limited by applicable law.

 

2.              **InvestorStatus**. Investor is: (a) an accredited investor as defined in Rule 501(a) under the Act; and (b) not a registered broker-dealer,member of FINRA, or an affiliate thereof.

 

V.           Securitiesand Other Provisions.

 

A.            Furnishingof Information. As long as Investor owns any C Preferred, Company will timely file all reportsrequired to be filed by Company after the Closing pursuant to the Exchange Act (the Company shall have until December 31, 2020to file its Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, which is currently late). As long as Investorowns any C Preferred, Company will prepare and make publicly available such information as is required for Investor to sell itsConversion Shares under Rule 144. Company further covenants that, as long as Investor owns any C Preferred, Company will takesuch further action as Investor may reasonably request, all to the extent required from time to time to enable Investor to sellits Conversion Shares without registration under the Act within the limitation of the exemptions provided by Rule 144.

 

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B.            Disclosureand Publicity. Company will provide to Investor for review and approval prior to filingor issuing that portion of any current or periodic report, registration statement, press release, public statement or communicationrelating to Investor or the transactions contemplated hereby (any such approval not to be unreasonably withheld, conditioned ordelayed).

 

C.            NoNon-Public Information. Company covenants and agrees that neither it nor any other Personacting on its behalf will, provide Investor or its agents or counsel with any information that Company believes or reasonablyshould believe will constitute material non-public information after Closing. On and after Closing, neither Investor nor any Affiliateof Investor will have any duty of trust or confidence that is owed directly, indirectly, or derivatively, to Company or the stockholdersof Company, or to any other Person who is the source of material non-public information regarding Company. Company understandsand confirms that Investor will be relying on the foregoing in effecting transactions in securities of Company, including withoutlimitation sales of the Shares.

 

 

1.              Obligationto Indemnify. Subject to the provisions of this Section IV.G,Company will indemnify and hold Investor, its Affiliates, managers and advisors, and each of their officers, directors, shareholders,partners, employees, representatives, agents and attorneys, and any person who controls Investor within the meaning of Section15 of the Act or Section 20 of the Exchange Act (collectively, “Investor Parties”and each a “Investor Party”), harmless from any and all losses, liabilities,obligations, claims, contingencies, damages, reasonable costs and expenses, including all judgments, amounts paid in settlements,court costs and reasonable attorneys’ fees and costs of investigation (collectively, “Losses”)that any Investor Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties,covenants or agreements made by Company in this Agreement or in the other Transaction Documents or (b) any action by Company ora creditor or stockholder of Company who is not an Affiliate of an Investor Party, challenging the transactions contemplated bythe Transaction Documents; provided, however, that Company will not be obligated to indemnify any Investor Party for any Lossesfinally adjudicated to be caused solely by such Investor Party’s unexcused material breach of an express provision of thisAgreement or another Transaction Document.

 

**2.             Procedurefor Indemnification.** If any action will be brought against an Investor Party in respect of which indemnity may be sought pursuantto this Agreement, such Investor Party will promptly notify Company in writing, and Company will have the right to assume thedefense thereof with counsel of its own choosing. Investor Parties will have the right to employ separate counsel in any suchaction and participate in the defense thereof, but the reasonable fees and expenses of such counsel will be at the expense ofInvestor Parties except to the extent that (a) the employment thereof has been specifically authorized by Company in writing,(b) Company has failed after a reasonable period of time to assume such defense and to employ counsel or (c) in such action thereis, in the reasonable opinion of such separate counsel, a material conflict with respect to the dispute in question on any materialissue between the position of Company and the position of Investor Parties such that it would be inappropriate for one counselto represent Company and Investor Parties. Company will not be liable to Investor Parties under this Agreement (i) for any settlementby an Investor Party effected without Company’s prior written consent, which will not be unreasonably withheld or delayed;or (ii) to the extent, but only to the extent that a loss, claim, damage or liability is either attributable to Investor’sbreach of any of the representations, warranties, covenants or agreements made by Investor in this Agreement or in the other TransactionDocuments. In no event will the Company be liable for the reasonable fees and expenses for more than one separate firm of attorneys(plus local counsel as applicable) to represent all Investor Parties.

 

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**3.**             Otherthan the liability of Investor to Company for uncured material breach of the express provisions of this Agreement, no InvestorParty will have any liability to Company or any Person asserting claims on behalf of or in right of Company as a result of acquiringthe Note under this Agreement.

 

E.            Reservationof Shares. Prior the Closing, the Company will have, and at all times thereafter will, maintaina reserve from its duly authorized Common Stock for issuance pursuant to the C Certificate authorized shares of Common Stock inan amount equal to the number of shares sufficient to immediately issue all Conversion Shares potentially issuable at such time,or such other number of shares agreed to in a signed writing between the parties.

 

F.            Agreementto Vote. Investor will vote any and all shares of Common Stock which it holds as of therecord date for the shareholder meeting to request the approval for the Merger and the approval of the securities issuable inconnection therewith (the “Meeting”) in favor of and “for” theMerger, the terms thereof and the securities issuable therewith, and those other proposals which are recommended by approval bythe Board of Directors of the Company in the proxy statement filed by the Company in connection with the Meeting.

 

G.            Approvalof Merger. Investor (i) agrees to, and consents to, the terms of the Merger, the agreementsentered into between the Company and the Merger Party (and its affiliates, employees and related parties) in connection with theMerger, including the Merger Agreement and all of the securities issued or issuable in connection therewith, and the issuanceof shares of Company capital stock in connection therewith; (ii) waives any and all rights the Investor has, or may have, underthe Prior Agreements, the C Preferred and the C Certificate, and any other agreementsbetween the Investor and the Company other than this Agreement, to further consent to, approve or agree to, the terms of suchMerger, the Merger Agreement or the securities issued or issuable in connection therewith; and (iii) further waives and releasesthe Company from any anti-dilution, reset, favorable nations or similar clauses, and/or any other rights whatsoever of such Investoror any securities of the Company held by such Investor, under such Prior Agreements, the C Preferred and the C Certificate, andany other agreements between the Investor and the Company other than this Agreement, in connection with the Merger, the MergerAgreement or the securities issued or issuable in connection therewith.

 

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**VI.          GeneralProvisions.**

 

A.            Notice.Unless a different time of day or method of delivery is specifically provided in the TransactionDocuments, any and all notices or other communications or deliveries required or permitted to be provided hereunder will be inwriting and will be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communicationis delivered via facsimile or electronic mail prior to 5:00 p.m. Eastern time on a Trading Day and an electronic confirmationof delivery is received by the sender and provided to the recipient, (b) the next Trading Day after the date of transmission,if such notice or communication is delivered later than 5:00 p.m. Eastern time or on a day that is not a Trading Day, (c) thenext Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service with confirmationof delivery prior to 5:00 p.m. Eastern time on such next Trading Day, or (d) upon actual receipt by the party to whom such noticeis required to be given. The addresses for such notices and communications are such other address as may be designated in writing,in the same manner, by such Person.

 

B.            Amendments;Waivers. No provision of this Agreement may be waived or amended except in a written instrumentsigned, in the case of an amendment, by Company and Investor or, in the case of a waiver, by the party against whom enforcementof any such waiver is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreementwill be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision,condition or requirement hereof, nor will any delay or omission of either party to exercise any right hereunder in any mannerimpair the exercise of any such right.

 

C.            Feesand Expenses. Except as otherwise provided in this Agreement, each party will pay the feesand expenses of its own advisers, attorneys, accountants and other experts, if any, and all other expenses incurred by such partyincident to the negotiation, preparation, execution, delivery and performance of the Transaction Documents. Company acknowledgesand agrees that Investor’s counsel solely represents Investor, and does not represent Company or its interests in connectionwith the Transaction Documents or the transactions contemplated thereby. Company will pay all stamp and other taxes and duties,if any, levied in connection with the sale or issuance of the Shares to Investor. As of the date hereof, the parties understandand agree that no such stamp or other taxes or duties would be imposed by the jurisdiction of Investor’s organization or,to Investor’s knowledge, by any other jurisdiction as a result of the nature or conduct of Investor’s business.

 

D.            Severability.If any provision of this Agreement is held to be invalid or unenforceable in any respect, thevalidity and enforceability of the remaining terms and provisions of this Agreement will not in any way be affected or impairedthereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor,and upon so agreeing, will incorporate such substitute provision in this Agreement.

 

E.            GoverningLaw. All matters between the parties, including without limitation questions concerningthe construction, validity, enforcement and interpretation of the Transaction Documents will be governed by and construed andenforced in accordance with the laws of the U.S. Virgin Islands, without regard to the principles of conflicts of law that wouldrequire or permit the application of the laws of any other jurisdiction, except for corporation law matters applicable to Companywhich will be governed by the corporate law of its jurisdiction of formation. The parties hereby waive all rights to a trial byjury. In any action, arbitration or proceeding, including appeal, arising out of or relating to any of the Transaction Documentsor otherwise involving the parties, the prevailing party will be awarded its reasonable attorneys’ fees and other costsand expenses reasonably incurred in connection with the investigation, preparation, prosecution or defense of such action or proceeding.

 

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G.            Arbitration.Any dispute, controversy, claim or action of any kind arising out of, relating to, or in connectionwith this Agreement, or in any way involving Company and Investor or their respective Affiliates, including any issues of arbitrability,will be resolved solely by final and binding arbitration in English before a retired judge at JAMS, or its successor, in the Territoryof the Virgin Islands, pursuant to the most expedited and Streamlined Arbitration Rules and Procedures available. Any interimor final award may be entered and enforced by any court of competent jurisdiction. The final award will include the prevailingparty’s reasonable arbitration, expert witness and attorney fees, costs and expenses. Notwithstanding the foregoing, Investoror the Company, as the case may be, may in its sole discretion bring an action in Delaware District Court or the U.S. DistrictCourt for the District of Delaware in aid of arbitration or for temporary, preliminary or provisional relief pending completionof arbitration. 

 

H.            Headings.The headings herein are for convenience only, do not constitute a part of this Agreement andwill not be deemed to limit or affect any of the provisions hereof.

 

I.             Construction.The parties agree that each of them and/or their respective counsel has reviewed and had anopportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguitiesare to be resolved against the drafting party will not be employed in the interpretation of the Transaction Documents or any amendmentshereto.The language used in this Agreement will be deemed to be the language chosenby the parties to express their mutual intent, and no rules of strict construction will be applied against any party. All currencyreferences in any Transaction Document are to U.S. dollars.

 

J.            FurtherAssurances. Each party will take all further actions and execute all further documents asmay be reasonably necessary to implement the provisions and carry out the intent of this Agreement fully and effectively. 

 

**K.            Acknowledgement.**Company hereby acknowledges and agrees that (1) Investor has at all times fully and completely complied with all of its obligationsunder the Prior Agreements, this Agreement, the C Certificate and all other Transaction Documents and agreements between Companyand Investor, (2) all Delivery Notices and calculations provided by Investor to Company were and are fully correct and accuratein all respects, (3) Investor has previously provided valid notice to the Company of the increase in beneficial ownership percentageset forth in Section 8 of the C Certificate to 9.99%, which will continue apply to all shares of C Preferred held by Investor,including without limitation following any amendment or restatement of the C Certificate.

 

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**L.            GeneralRelease**. Company, on behalf of itself and on behalf of each of its predecessors, successors, parents, subsidiaries, shareholders,and affiliated and/or related companies, and each of its respective present and former officers, directors, shareholders, employees,representatives, business entities, executors, administrators, conservators, assignors and assignees (collectively, the “**ReleasingParties**”) hereby knowingly and voluntarily fully and forever absolutely and irrevocably waive, release and dischargeInvestor and its predecessors, successors, parents, subsidiaries, and affiliated and/or related companies and entities, and eachof their respective present and former officers, directors, shareholders, partners, members, employees, representatives, agents,attorneys, advisors, business entities, executors, administrators, conservators, assignors and assignees and all parties actingthrough, under or in concert with them, and each of them, in their individual and representative capacities (collectively, the“**Released Parties**”) from any and all claims, charges, complaints, grievances, demands, liens, actions, suits,causes of action, obligations, controversies, debts, costs, indemnity, attorneys’ fees, expenses, damages, judgments, orders,and liabilities of whatever kind and/or nature in law, equity or otherwise, whether now known or unknown, suspected or unsuspected,which have existed or may have existed, or which do exist or which hereafter can, shall or may exist as of the date this Agreementis executed, including without limitation any that are based upon, connected with, or otherwise arising out of or in any way relatingto any Transaction Documents (collectively, the “**Released Claims**”). The Releasing Parties, and each ofthem, expressly waive and relinquish, to the fullest extent permitted by law, the provisions, rights and benefits conferred byany law which would limit the scope of the release provided above. The Releasing Parties acknowledge that they or any of themmay hereafter discover facts in addition to or different from those which they now know to be true with respect to the subjectmatters of the claims released herein, but hereby stipulate and agree that they have fully, finally, and forever settled and releasedany and all such claims, whether known or unknown, suspected or unsuspected, contingent or non-contingent, concealed or hidden,which now exist or heretofore existed upon any theory of law or equity now existing or coming into existence in the future, withoutregard to the discovery or existence of such different or additional facts.

 

**M.            Amendments.**Section II.E, Subsequent Closings, of the C Agreement is hereby deleted in its entirety, and shall be of no further forceor effect. The entirety of Section IV.O, Repurchase Obligation, the provision that “Investor will not resell, transfer orassign the Preferred Shares in Section III.C.IV, Ownership, the provision that “Investor may not sell, transfer or assignany Preferred Shares or any of its rights under this Agreement” in Section IV.J of the June 22, 2020 Stock Purchase Agreemententered into between Company and Investor, and all similar provisions in any Prior Agreements, are hereby deleted.

 

**N.            Ratification.**Except as expressly provided herein, the Prior Agreements, which are incorporated by reference as though set forth in fullherein, and the C Certificate are hereby ratified and affirmed in all respects, and remain in full force and effect. Except asexpressly provided herein, the execution of this Agreement shall not operate as a waiver of any right, power or remedy of theInvestor, constitute a waiver of any provision of any of the Prior Agreements, C Certificate or any Transaction Document or serveto effect a novation of the obligations under the Prior Agreements, C Certificate or any Transaction Document. Except as expresslyprovided herein, the Prior Agreements and all Transaction Documents between Company and Investor shall continue in full forceand effect and nothing herein shall act as a waiver of any of the Investor’s rights under any of the foregoing.