Exhibit 10.2


 


[FORM OF SENIOR SECURED NOTE]


 


THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL SELECTED BY THE HOLDER,
IN A FORM REASONABLY SATISFACTORY TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS ELIGIBLE TO BE
SOLD OR SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN
CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF
THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTIONS 3 AND 13(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED
BY THIS NOTE MAY BE LESS THAN THE AMOUNT SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3 OF THIS NOTE.


 


Merton
Acquisition HoldCo LLC


 


SENIOR
SECURED NOTE


 


	Issuance Date:  [  ]	Original Principal Amount: U.S. $


 


FOR VALUE RECEIVED,
Merton Acquisition HoldCo LLC, a Delaware limited liability company (the “Company”), hereby promises to pay
to                                     or
registered assigns (the “Holder”) in cash the amount set out above as the Original Principal Amount (as reduced
pursuant to the terms hereof pursuant to redemption or otherwise, the “Principal”) when due, whether upon the
Maturity Date (as defined below), acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and
to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate from the date set
out above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon an
Interest Payment Date (as defined below), the Maturity Date, acceleration, redemption or otherwise (in each case in accordance
with the terms hereof). This Senior Secured Note (including all Senior Secured Notes issued in exchange, transfer or replacement
hereof, this “Note”) is issued in exchange for Senior Secured Notes issued by the Company pursuant to the Securities
Purchase Agreement on an Additional Closing Date that is the Issuance Date (collectively, the “Notes” and such
other Senior Secured Notes, the “Other Notes”). Certain capitalized terms used herein are defined in Section
27.


 


(1)            
PAYMENTS OF PRINCIPAL; PREPAYMENT. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing
all outstanding Principal, any accrued and unpaid Interest and any accrued and unpaid Late Charges (as defined in Section 19(b))
on such Principal and Interest. The “Maturity Date” shall be December 31, 2020. Other than as specifically permitted
or required by this Note, the Supplemental Agreement and the Exchange Agreement, the Company or the Parent Guarantor may not prepay
any portion of the outstanding Principal, accrued and unpaid Interest or accrued and unpaid Late Charges on Principal and Interest,
if any.


 


(2)            
INTEREST. Interest on this Note shall commence accruing on the Issuance Date at the Interest Rate and shall be computed
on the basis of a 360-day year and twelve 30-day months and shall be payable semi-annually in arrears on each November 15 and May
15 after the Issuance Date, provided that if any such date falls on a day that is not a Business Day, the next day that
is a Business Day (each, an “Interest Payment Date”), to the Holder of record at the close of business on the
preceding November 1 and May 1 (even if such day is not a Business Day) (each, an “Interest Record Date”).
Interest shall be payable on each Interest Payment Date, to the record holder of this Note on the applicable Interest Record Date,
in cash, by wire transfer of immediately available funds pursuant to wire instructions provided by the Holder in writing to the
Company. Prior to the payment of Interest on an Interest Payment Date, Interest on this Note shall accrue at the Interest Rate
and be payable by way of inclusion of the Interest in the Redemption Amount on each Redemption Date. From and after the occurrence
and during the continuance of an Event of Default, the Interest Rate shall be increased to ten percent (10.0%) per annum. In the
event that such Event of Default is subsequently cured, the adjustment referred to in the preceding sentence shall cease to be
effective as of the date of such cure; provided, that the Interest as calculated and unpaid at such increased rate during
the continuance of such Event of Default shall continue to apply to the extent relating to the days after the occurrence of such
Event of Default through and including the date of cure of such Event of Default; provided, further, that for the
purpose of this Section 2, such Event of Default shall not be deemed cured unless and until any accrued and unpaid Interest shall
be paid to the Holder, including, without limitation, Interest accrued at the increased rate of ten percent (10.0%) per annum.


 


 


 






    	 	1	 



     


    

 


(3)  
REGISTRATION; BOOK-ENTRY. The Company shall maintain a register (the “Register”) for the recordation
of the names and addresses of the holders of each Note and the Principal amount of the Notes (and stated interest thereon) held
by such holders (the “Registered Notes”). The entries in the Register shall be conclusive and binding for all
purposes absent manifest error. The Company and the holders of the Notes shall treat each Person whose name is recorded in the
Register as the owner of a Note for all purposes, including, without limitation, the right to receive payments of Principal and
Interest, if any, hereunder, notwithstanding notice to the contrary. A Registered Note may be assigned or sold in whole or in part
only by registration of such assignment or sale on the Register. Upon its receipt of a request to assign or sell all or part of
any Registered Note by the Holder, the Company shall record the information contained therein in the Register and issue one or
more new Registered Notes in the same aggregate Principal amount as the Principal amount of the surrendered Registered Note to
the designated assignee or transferee pursuant to Section 12. Notwithstanding anything to the contrary in this Section 3, the Holder
may assign the Note or any portion thereof to an Affiliate of the Holder or a Related Fund of the Holder without delivering a request
to assign or sell such Note to the Company and the recordation of such assignment or sale in the Register; provided, that
(x) the Company may continue to deal solely with such assigning or selling Holder unless and until the Holder has delivered
a request to assign or sell such Note or portion thereof to the Company for recordation in the Register; (y) the failure of such
assigning or selling Holder to deliver a request to assign or sell such Note or portion thereof to the Company shall not affect
the legality, validity, or binding effect of such assignment or sale and (z) such assigning or selling Holder shall, acting solely
for this purpose as a non-fiduciary agent of the Company, maintain a register (the “Related Party Register”)
comparable to the Register on behalf of the Company, and any such assignment or sale shall be effective upon recordation of such
assignment or sale in the Related Party Register. Notwithstanding anything to the contrary set forth herein, upon redemption of
any portion of this Note in accordance with the terms hereof or cancellation of any portion of this Note in accordance with Section
26, the Holder shall not be required to physically surrender this Note to the Company unless (A) the full Redemption Amount represented
by this Note is being redeemed or cancelled, in which case the Holder shall deliver such certificate to the Company as soon as
reasonably practicable following such redemption or cancellation or (B) the Holder has provided the Company with prior written
notice requesting reissuance of this Note upon physical surrender of this Note. The Holder and the Company shall maintain records
showing the Principal, Interest and Late Charges, if any, redeemed and/or cancelled and the dates of such redemptions and/or cancellations
or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender
of this Note upon redemption or cancellation. If the Company does not update the Register to record such Principal, Interest and
Late Charges paid and the dates of such payments and cancellations within two (2) Business Days of such occurrence, then the Register
shall be automatically deemed updated to reflect such occurrence.


 


(4)            
RIGHTS UPON EVENT OF DEFAULT.


 


(a)            
Event of Default. Each of the following events shall constitute an “Event of Default” and each
of the events in clauses (iv) and (v) shall constitute a “Bankruptcy Event of Default”:


 


(i)             
the failure of the applicable Registration Statement required to be filed pursuant to the Registration Rights Agreement
to be filed or declared effective within the applicable time period specified in the Registration Rights Agreement, or, at any
time while the applicable Registration Statement is required to be maintained effective pursuant to the terms of the Registration
Rights Agreement, the effectiveness of the applicable Registration Statement lapses for any reason (including, without limitation,
the issuance of a stop order) or is unavailable to any holder of the Notes for sale of all of such holder’s Registrable Securities
in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability continues for a period of ten
(10) consecutive Trading Days or for more than an aggregate of fifteen (15) Trading Days in any 365-day period (other than days
during an Allowable Grace Period (as defined in the Registration Rights Agreement));


 


(ii)           
the Company’s failure to pay to the Holder any amount of Principal, Interest, Late Charges, Redemption Price or other
amounts when and as due under this Note or any other Transaction Document, except, in the case of a failure to pay Interest and/or
Late Charges when and as due, in which case only if such failure continues for a period of at least an aggregate of two (2) Business
Days;


 


(iii)         
any acceleration or default-triggered redemption or conversion prior to maturity of any Indebtedness or preferred equity
of the Parent Guarantor and/or any of its Subsidiaries in an aggregated principal amount and/or stated amount in excess of $10,000,000;


 


(iv)          
the Parent Guarantor or any of its Subsidiaries, pursuant to or within the meaning of Title 11, U.S. Code, or any similar
federal, foreign or state law for the relief of debtors (collectively, “Bankruptcy Law”), (A) commences a voluntary
case, (B) consents to the entry of an order for relief against it in an involuntary case, (C) consents to the appointment
of a receiver, trustee, assignee, liquidator or similar official (a “Custodian”), (D) makes a general assignment
for the benefit of its creditors or (E) admits in writing that it is generally unable to pay its debts as they become due;


 


 


 






    	 	2	 



     


    

 


(v)            
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the
Parent Guarantor or any of its Subsidiaries in an involuntary case, (B) appoints a Custodian of the Parent Guarantor or any of
its Subsidiaries or (C) orders the liquidation of the Parent Guarantor or any of its Subsidiaries;


 


(vi)          
one or more judgments, orders or awards for the payment of money aggregating (above any insurance coverage or indemnity
from a credit worthy party so long as the Parent Guarantor provides the Holder a written statement from such insurer or indemnity
provider (which written statement shall be reasonably satisfactory to the Holder) to the effect that such judgment, order or award
is covered by insurance or an indemnity and the Parent Guarantor will receive the proceeds of such insurance or indemnity within
thirty (30) days of the issuance of such judgment, order or award) in excess of $20,000,000 are rendered against the Parent Guarantor
or any of its Subsidiaries and which judgments, orders or awards are not, within thirty (30) days after the entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within thirty (30) days after the expiration of such stay;


 


(vii)        
other than as specifically set forth in another clause of this Section 4(a), the Parent Guarantor or any of its Subsidiaries
breaches any representation, warranty, covenant or other term or condition set forth in this Note, except, in the case of a breach
of a covenant or other term or condition of any such agreement which is curable, only if such breach continues for a period of
at least an aggregate of twenty (20) days;


 


(viii)      
if the Holder is a Designee, other than as specifically set forth in another clause of this Section 4(a), the Parent Guarantor
or any of its Subsidiaries breaches any representation, warranty, covenant or other term or condition set forth in Sections 3(b),
3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(l), 3(p), 3(q), 3(r), 3(v), 3(ee), 3(ii), 3(mm), 3(nn), 3(qq), 4(v) or 4(z) of the Securities
Purchase Agreement, except, in the case of a breach of a covenant or other term or condition of any such agreement which is curable,
only if such breach continues for a period of at least an aggregate of thirty (30) days;


 


(ix)          
any breach or failure in any respect to comply with Section 10 of this Note, except, in the case of a breach or a failure
which is curable, only if such breach continues for a period of at least an aggregate of thirty (30) days;


 


(x)            
any material provision of any Security Document (as determined by the Collateral Agent) shall at any time for any reason
(other than pursuant to the express terms thereof) cease to be valid and binding on or enforceable against the Parent Guarantor
or any Subsidiary intended to be a party thereto, or the validity or enforceability thereof shall be contested by any party thereto,
or a proceeding shall be commenced by the Parent Guarantor or any Subsidiary or any governmental authority having jurisdiction
over any of them, seeking to establish the invalidity or unenforceability thereof, or the Parent Guarantor or any Subsidiary shall
deny in writing that it has any liability or obligation purported to be created under any Security Document;


 


(xi)          
any Security Document or any other security document, after delivery thereof pursuant hereto, shall for any reason fail
or cease to create a valid and perfected and, except to the extent permitted by the terms hereof or thereof, first priority Lien
in favor of the Collateral Agent for the benefit of the holders of the Notes on any Collateral purported to be covered thereby;


 


(xii)        
any bank at which any deposit account, blocked account, or lockbox account of the Parent Guarantor or any Subsidiary is
maintained shall fail to comply with any material term of any deposit account, blocked account, lockbox account or similar agreement
to which such bank is a party or any securities intermediary, commodity intermediary or other financial institution at any time
in custody, control or possession of any investment property of the Parent Guarantor or any Subsidiary shall fail to comply with
any of the terms of any investment property control agreement to which such Person is a party (it being understood that only accounts
pursuant to which the Collateral Agent has requested account control agreements should be subject to this clause (xii));


 


(xiii)      
a false or inaccurate certification (including a false or inaccurate deemed certification) by the Company as to whether
any Event of Default has occurred;


 


(xiv)      
the Parent Guarantor fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the
Holder upon conversion or exercise (as the case may be) of any Securities (as defined in the Securities Purchase Agreement) acquired
by the Holder under the Securities Purchase Agreement as and when required by such Securities, the Certificate of Designations
or the Securities Purchase Agreement, unless otherwise then prohibited by applicable federal securities laws, and any such failure
remains uncured for at least five (5) consecutive Trading Days;


 


 


 






    	 	3	 



     


    

 


(xv)        
the Company or the Parent Guarantor becomes an “investment company,” a company controlled by an “investment
company” or an “affiliated person” of, or “promoter” or “principal underwriter” for,
an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended;


 


(xvi)      
(A) the suspension of the Common Stock from trading on an Eligible Market for a period of five (5) consecutive Trading Days
or for more than an aggregate of fifteen (15) Trading Days in any 365-day period or (B) the failure of the Common Stock to be listed
on an Eligible Market;


 


(xvii)    
at any time following the fifth (5th) consecutive Business Day after an Authorized Share Failure (as defined
in the Series B Warrants), except, solely with respect to the first occurrence of an Authorized Share Failure hereunder, to the
extent the Parent Guarantor is complying with the terms set forth in Section 1(h) of the Series B Warrants;


 


(xviii)   
the Parent Guarantor does not directly or indirectly own 100% of the Equity Interests of the Company;


 


(xix)      
any Event of Default (as defined in the Other Notes) occurs with respect to any Other Notes; or


 


(xx)        
any Event of Default (as defined in the Additional Notes) occurs with respect to any Additional Notes.


 


(b)    
Redemption Right. At any time after the earlier of the Holder’s receipt of an Event of Default Notice (as defined
in Section 10(e)) and the Holder becoming aware of an Event of Default, the Holder may require the Company to redeem (an “Event
of Default Redemption”) all or any portion of this Note by delivering written notice thereof (the “Event of
Default Redemption Notice”) to the Company, which Event of Default Redemption Notice shall indicate the portion of this
Note the Holder is electing to require the Company to redeem. Each portion of this Note subject to redemption by the Company pursuant
to this Section 4(b) shall be redeemed by the Company in cash by wire transfer of immediately available funds at a price equal
to the Redemption Amount being redeemed, plus, only in the cases of an Event of Default Redemption pursuant to Section 4(a)(xvi)
or Section 4(a)(xvii), an amount in cash equal to the product obtained by multiplying (A) the number of shares of Common Stock
issuable upon exercise of the Series B Warrants (without regard to any limitations on exercise set forth in the Series B Warrants)
held by the Holder at the time the Company pays the applicable Event of Default Redemption Price (as defined below) to the Holder
and (B) the excess, if any, of (1) the highest Closing Sale Price (as defined in the Warrants) of the shares of Common Stock during
the period beginning on the date immediately preceding such Event of Default and ending on the date the Holder delivers the related
Event of Default Redemption Notice, over (2) the lowest Other Exercise Price in effect during such period (the “Event
of Default Redemption Price”). Redemptions required by this Section 4(b) shall be made in accordance with the provisions
of Section 8. To the extent redemptions required by this Section 4(b) are deemed or determined by a court of competent jurisdiction
to be prepayments of the Note by the Company, such redemptions shall be deemed to be voluntary prepayments. The Company and the
Holder agree that in the event of the Company’s redemption of any portion of the Note under this Section 4(b), the Holder’s
damages would be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and
the uncertainty of the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any redemption
premium due under this Section 4(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s
actual loss of its investment opportunity and not as a penalty.


 


(c)     
Mandatory Redemption upon Bankruptcy Event of Default. Notwithstanding anything to the contrary herein, upon any
Bankruptcy Event of Default, whether occurring prior to or following the Maturity Date, the Company shall immediately pay to the
Holder an amount in cash representing the applicable Event of Default Redemption Price, without the requirement for any notice
or demand or other action by the Holder or any other Person; provided that the Holder may, in its sole and absolute discretion,
waive such right to receive payment upon a Bankruptcy Event of Default, in whole or in part, and any such waiver shall not affect
any other rights of the Holder hereunder, including any other rights in respect of such Bankruptcy Event of Default and any right
to payment of the Event of Default Redemption Price or any other Redemption Price, as applicable. Redemptions required by this
Section 4(c) shall be made in accordance with the provisions of Section 8.


 


(5)            
RIGHTS UPON FUNDAMENTAL TRANSACTION AND CHANGE OF CONTROL.


 


 


 






    	 	4	 



     


    

 


(a)  
Assumption. Upon the occurrence or consummation of any Fundamental Transaction with respect to the Company or the
Parent Guarantor, and it shall be a required condition to the occurrence or consummation of any Fundamental Transaction that, the
Company or the Parent Guarantor, as applicable, and the Successor Entity or Successor Entities, jointly and severally, shall succeed
to the Company or the Parent Guarantor, as applicable, and the Company or the Parent Guarantor, as applicable, shall cause any
Successor Entity or Successor Entities to jointly and severally succeed to the Company or the Parent Guarantor, as applicable,
and be added to the term “Company” or “Parent Guarantor,” as applicable, under this Note (so that from
and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Note referring to the
“Company” or the “Parent Guarantor,” as applicable, shall refer instead to each of the Company or the Parent
Guarantor, as applicable, and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor
Entities, jointly and severally with the Company or the Parent Guarantor, as applicable, may exercise every right and power of
the Company or the Parent Guarantor, as applicable, prior thereto and the Successor Entity or Successor Entities shall assume all
of the obligations of the Company or the Parent Guarantor, as applicable, prior thereto under this Note with the same effect as
if the Company or the Parent Guarantor, as applicable, and such Successor Entity or Successor Entities, jointly and severally,
had been named as the Company or the Parent Guarantor, as applicable, in this Note. The provisions of this Section 5(a) shall apply
similarly and equally to successive Fundamental Transactions.


 


(b)  
Redemption Right. Not less than ten (10) days prior to the consummation of a Change of Control, the Company shall
deliver written notice thereof to the Holder (a “Change of Control Notice”) setting forth a description of such
transaction in reasonable detail and the anticipated date of the consummation of such Change of Control if then known. At any time
during the period beginning on the earliest to occur of (x) the public announcement of any oral or written agreement by the Parent
Guarantor or any of its Subsidiaries, upon consummation of which the transaction contemplated thereby would reasonably be expected
to result in a Change of Control, (y) the Holder’s receipt of a Change of Control Notice, and (z) the consummation of such
transaction which results in a Change of Control, and ending twenty-five (25) Trading Days after the date of the consummation of
such Change of Control, the Holder may require the Company to redeem all or any portion of this Note by delivering written notice
thereof (a “Holder Change of Control Redemption Notice”) to the Company, which Holder Change of Control Redemption
Notice shall indicate the Redemption Amount the Holder is electing to require the Company to redeem. Within ten (10) days before
or after the applicable Change of Control, the Company may redeem (a “Company Change of Control Redemption”)
all but not less than all of this Note by delivering written notice (a “Company Change of Control Redemption Notice”
and, together with a Holder Change of Control Redemption Notice, a “Change of Control Redemption Notice”) to
the Holder, which Company Change of Control Redemption Notice shall indicate the Redemption Amount that is subject to such Company
Change of Control Redemption; provided, that a Company Change of Control Redemption shall only be permitted with respect
to a Change of Control in which one hundred percent (100%) of the Equity Interests of the Company is purchased for cash and/or
Cash Equivalents. If the Company elects to cause a Company Change of Control Redemption pursuant to this Section 5(b), then
it must simultaneously take the same action with respect to all Other Notes and Additional Notes then outstanding. The portion
of this Note subject to redemption pursuant to this Section 5(b) shall be redeemed by the Company in cash by wire transfer of immediately
available funds at a price equal to the sum of (A) the Redemption Amount of the Notes being redeemed and (B) the Make-Whole Amount
(the “Change of Control Redemption Price”). Redemptions required by this Section 5 shall be made in accordance
with the provisions of Section 8 and shall have priority to payments to stockholders in connection with a Change of Control. To
the extent redemptions required by this Section 5(b) are deemed or determined by a court of competent jurisdiction to be prepayments
of the Note by the Company, such redemptions shall be deemed to be voluntary prepayments. The parties hereto agree that in the
event of the Company’s redemption of any portion of the Note under this Section 5(b), the Holder’s damages would
be uncertain and difficult to estimate because of the parties’ inability to predict future interest rates and the uncertainty
of the availability of a suitable substitute investment opportunity for the Holder. Accordingly, any redemption premium due under
this Section 5(b) is intended by the parties to be, and shall be deemed, a reasonable estimate of the Holder’s actual loss
of its investment opportunity and not as a penalty.


 


(6)  
[Reserved]


 


(7)            
NONCIRCUMVENTION. Each of the Company and the Parent Guarantor hereby covenants and agrees that such Person will
not, by amendment of its Certificate of Incorporation or Bylaws or through any reorganization, transfer of assets, consolidation,
merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid
the observance or performance of any of the terms of this Note, and will at all times in good faith carry out all of the provisions
of this Note and take all action as may be required to protect the rights of the Holder.


 


 


 






    	 	5	 



     


    

 


(8)            
REDEMPTIONS.


 


(a)  
Mechanics. The Company shall deliver the applicable Event of Default Redemption Price to the Holder within three
(3) Business Days after the Company’s receipt of the Holder’s Event of Default Redemption Notice; provided that
upon a Bankruptcy Event of Default, the Company shall deliver the applicable Event of Default Redemption Price in accordance with
Section 4(c) (as applicable, the “Event of Default Redemption Date”). If the Holder or the Company has submitted
a Change of Control Redemption Notice in accordance with Section 5(b), the Company shall deliver the applicable Change of Control
Redemption Price to the Holder (i) concurrently with the consummation of such Change of Control if such notice is received
prior to the consummation of such Change of Control and (ii) within three (3) Business Days after the delivery to the Company or
the Holder, as applicable, of such notice otherwise (such date, the “Change of Control Redemption Date”). The
Company shall pay the applicable Redemption Price to the Holder in cash by wire transfer of immediately available funds pursuant
to wire instructions provided by the Holder in writing to the Company on the applicable due date. In the event of a redemption
of less than all of the Redemption Amount of this Note, the Company shall promptly cause to be issued and delivered to the Holder
a new Note (in accordance with Section 13(d)) representing the outstanding Principal which has not been redeemed and any accrued
Interest on such Principal which shall be calculated as if no Redemption Notice has been delivered. In the event that the Company
does not pay the applicable Redemption Price to the Holder within the time period required, at any time thereafter and until the
Company pays such unpaid Redemption Price in full, the Holder shall have the option, in lieu of redemption, to require the Company
to promptly return to the Holder all or any portion of this Note representing the Redemption Amount that was submitted for redemption
and for which the applicable Redemption Price (together with any Late Charges thereon) has not been paid. Upon the Company’s
receipt of such notice, (x) the applicable Redemption Notice shall be null and void with respect to such Redemption Amount and
(y) the Company shall immediately return this Note, or issue a new Note (in accordance with Section 13(d)) to the Holder representing
such Redemption Amount to be redeemed. The Holder’s delivery of a notice voiding a Redemption Notice and exercise of its
rights following such notice shall not affect the Company’s obligations to make any payments of any amount, including Late
Charges, which have accrued prior to the date of such notice with respect to the Redemption Amount subject to such notice.


 


(b)            
Redemption by Other Holders. Upon the Company’s or the Parent Guarantor’s receipt of notice from or on
behalf of any of the holders of the Other Notes or the Additional Securities, if any, for redemption or repayment as a result of
an event or occurrence substantially similar to the events or occurrences described in Section 4(b) or Section 5(b) or pursuant
to analogous provisions set forth in the Other Notes, the Additional Notes or the Certificate of Designations (each, an “Other
Redemption Notice”), the Company or the Parent Guarantor (as applicable) shall promptly, but no later than one (1) Business
Day of its receipt thereof, forward to the Holder a copy of such notice. If the Company or the Parent Guarantor receives a Redemption
Notice and one or more Other Redemption Notices, during the seven (7) Business Day period beginning on and including the date which
is three (3) Business Days prior to such Person’s receipt of the Holder’s Redemption Notice and ending on and including
the date which is three (3) Business Days after such Person’s receipt of the Holder’s Redemption Notice and the Company
is unable to redeem the entire Redemption Prices and such other amounts designated in such Redemption Notice and such Other Redemption
Notices received during such seven (7) Business Day period, then the Company shall redeem a pro rata amount from the Holder and
each holder of the Other Notes and the Additional Securities, if any, based on the Principal amount of this Note, the principal
amount of the Other Notes and the Additional Notes and/or the Stated Value of the Series A Preferred Shares submitted for redemption
pursuant to such Redemption Notice and such Other Redemption Notices received by the Company or the Parent Guarantor during such
seven (7) Business Day period.


 


(9)            
SECURITY. This Note and the Other Notes are secured to the extent and in the manner set forth in the Security Documents.


 


(10)        
COVENANTS.


 


(a)  
Limitation on Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock.


 


(i)             
The Parent Guarantor shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, Incur any Indebtedness
(including Acquired Indebtedness) or issue any shares of Disqualified Stock and the Parent Guarantor shall not permit any of its
Subsidiaries to issue any shares of Preferred Stock; provided, however, such limitations shall not apply to (collectively,
“Permitted Debt”):


 


(1)  
the Incurrence by the Parent Guarantor or any of its Subsidiaries of Indebtedness under any Credit Facilities in an aggregate
principal amount outstanding at any time not to exceed the lesser of (i) $100.0 million and (ii) the Available Amount Basket;


 


 


 






    	 	6	 



     


    

 


(2)  
the Incurrence by the (i) Company of Indebtedness represented by the Notes, Other Notes and the Additional Company Notes,
(ii) Parent Guarantor of Indebtedness represented by the Additional Parent Guarantor Notes and (iii) Guarantors of Indebtedness
represented by the Guarantees issued with respect to the Notes, Other Notes and the Additional Notes;


 


(3)  
Indebtedness, Disqualified Stock and Preferred Stock existing on the Subscription Date and Series A Preferred Shares issued
pursuant to the Securities Purchase Agreement (other than Indebtedness described in clause (1) of this Section 10(a)(i));


 


(4)  
Indebtedness with respect to all obligations and liabilities, contingent or otherwise, in respect of letters of credit,
acceptances and similar facilities incurred in the ordinary course of business, including, without limitation, letters of credit
and bank guarantees issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers’
compensation claims, health, disability or other employee benefits (whether current or former) or property, casualty or liability
insurance, or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims; provided,
however, that upon the drawing of such letters of credit, such obligations are reimbursed within thirty (30) days following
such drawing;


 


(5)  
Indebtedness arising from agreements of the Company or a Guarantor providing for indemnification, adjustment of purchase
price, deferred purchase price, earn-out or similar obligations, in each case, Incurred in connection with any acquisition or disposition
of any business, assets or a Subsidiary of the Parent Guarantor or assumed, other than guarantees of Indebtedness Incurred by any
Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition; provided
that any such payment shall be deemed to be an Investment;


 


(6)  
Indebtedness of the Parent Guarantor to the Company or a Guarantor; provided that any subsequent issuance or transfer
of any Capital Stock or any other event which results in any such Guarantor ceasing to be a Guarantor or any other subsequent transfer
of any such Indebtedness (except to a Guarantor or the Company) shall be deemed, in each case to be an Incurrence of such Indebtedness;


 


(7)  
shares of Preferred Stock of the Company or a Guarantor issued to the Company or a Guarantor; provided that any subsequent
issuance or transfer of any Capital Stock or any other event that results in the Company or any Guarantor that holds such shares
of Preferred Stock of another Guarantor ceasing to be a Guarantor or any other subsequent transfer of any such shares of Preferred
Stock (except to the Company or another Guarantor) shall be deemed, in each case, to be an issuance of shares of Preferred Stock;


 


(8)  
Indebtedness of the Company or a Guarantor to the Company or another Guarantor; provided that any subsequent issuance
or transfer of any Capital Stock or any other event which results in any Guarantor lending such Indebtedness ceasing to be a Guarantor
or any other subsequent transfer of any such Indebtedness (except to the Company or another Guarantor) shall be deemed, in each
case, to be an Incurrence of such Indebtedness;


 


(9)  
obligations in respect of self-insurance and obligations (including reimbursement obligations with respect to letters of
credit and bank guarantees) in respect of performance, bid, appeal and surety bonds and similar instruments and performance and
completion guarantees and similar obligations provided by the Parent Guarantor or any Subsidiary, in each case, incurred in the
ordinary course of business;


 


(10)        
any guarantee or co-issuance by the Company or a Guarantor of Indebtedness or other obligations of the Company or any Guarantor
so long as the Incurrence of such Indebtedness or other obligations by the Company or such Guarantor is not prohibited under the
terms of this Note; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Notes and
the Additional Notes or the Guarantee of such Guarantor, as applicable, any such guarantee or co-issuance of such Guarantor with
respect to such Indebtedness shall be subordinated in right of payment to such Guarantor’s Guarantee with respect to the
Notes and Additional Notes substantially to the same extent as such Indebtedness is subordinated to the Notes and Additional Notes
or the Guarantee of such Guarantor, as applicable;


 


 


 






    	 	7	 



     


    

 


(11)        
the Incurrence by the Company or any Guarantor of Indebtedness or Disqualified Stock or Preferred Stock of a Guarantor which
serves to refund, refinance, replace, renew, extend or defease any Indebtedness, Disqualified Stock or Preferred Stock Incurred
as permitted under clauses (2), (3) and (11) of this Section 10(a)(i) or any Indebtedness, Disqualified Stock or Preferred Stock
Incurred to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, including any Indebtedness, Disqualified
Stock or Preferred Stock Incurred to pay premiums (including lender premiums), defeasance costs, accrued interest, fees and expenses
in connection therewith (subject to the following proviso, “Refinancing Indebtedness”) prior to its respective
maturity; provided, however, that such Refinancing Indebtedness:


 


(A) has a Weighted
Average Life to Maturity at the time such Refinancing Indebtedness is Incurred which is not less than the remaining Weighted Average
Life to Maturity of the Indebtedness, Disqualified Stock or Preferred Stock being refunded or refinanced, replaced, renewed, extended
or defeased;


 


(B) has a Stated Maturity
which is no earlier than ninety one (91) days after the Maturity Date;


 


(C) to the extent such
Refinancing Indebtedness refinances (x) Indebtedness junior to the Notes and the Additional Notes or the Guarantee of such Guarantor,
as applicable, such Refinancing Indebtedness is junior to the Notes and the Additional Notes or the Guarantee of such Guarantor,
as applicable, or (y) Disqualified Stock or Preferred Stock, such Refinancing Indebtedness is Disqualified Stock or Preferred Stock;
and


 


(D) is Incurred in
an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than
the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the
Indebtedness being refinanced plus premium and fees Incurred in connection with such refinancing;


 


(12)        
Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument
drawn against insufficient funds in the ordinary course of business; provided, that such Indebtedness is extinguished within
ten (10) Business Days of its Incurrence;


 


(13)        
Indebtedness of the Company or any Guarantor consisting of (x) the financing of insurance premiums or (y) take-or-pay obligations
contained in supply arrangements, in each case, in the ordinary course of business;


 


(14)        
Indebtedness of the Company or any Guarantor Incurred in the ordinary course of business under guarantees of Indebtedness
of suppliers, licensees, franchisees or customers;


 


(15)        
to the extent constituting Indebtedness, obligations in respect of (A) customer deposits and advance payments received in
the ordinary course of business, (B) letters of credit, bankers’ acceptances, guarantees or other similar instruments or
obligations issued or relating to liabilities or obligations Incurred in the ordinary course of business and (C) any customary
cash management, cash pooling or netting or setting off arrangements or automatic clearinghouse arrangements in the ordinary course
of business;


 


(16)        
Indebtedness to current or former officers, managers, consultants, directors and employees, their respective estates, spouses
or former spouses to finance the purchase or redemption of Equity Interests of the Parent Guarantor permitted by this Note;


 


(17)        
Indebtedness in connection with a Qualified Receivables Financing;


 


(18)        
the incurrence of contingent liabilities arising out of endorsements of checks, drafts and other similar instruments for
deposit or collection in the ordinary course of business;


 


(19)        
Indebtedness of the Parent Guarantor and its Subsidiaries, to the extent the net proceeds thereof are promptly used to purchase
all of this Note, the Other Notes and the Additional Notes in connection with a Change of Control;


 


 


 






    	 	8	 



     


    

 


(20)        
Indebtedness incurred by the Company or any Guarantor; provided, that (i) the net proceeds of such Indebtedness will
be used to prepay other outstanding Indebtedness of the Company or any Guarantor and (ii) such Indebtedness is thereafter promptly
assumed, retired or otherwise repaid by a Person (other than the Parent Guarantor or any Subsidiary) and upon such assumption,
retirement or other repayment, such Indebtedness is non-recourse to the Parent Guarantor or any Subsidiary;


 


(21)        
Indebtedness in respect of an acquisition permitted hereunder, which Indebtedness is not incurred in connection with such
acquisition by the Parent Guarantor or any Subsidiary in contemplation of such acquisition and such Indebtedness is existing at
the time such Person becomes a Subsidiary of the Parent Guarantor or a Guarantor (other than Indebtedness incurred solely in contemplation
of such Person becoming a Subsidiary of the Parent Guarantor or a Guarantor), in an aggregate principal amount outstanding at any
time not to exceed $20.0 million; and


 


(22)        
Indebtedness in respect of margin loans not to exceed $10,000,000 in the aggregate


 


(ii)           
For purposes of determining compliance with this Section 10(a), in the event that an item of Indebtedness, Disqualified
Stock or Preferred Stock meets the criteria of more than one of the categories of Permitted Debt, the Company and Parent Guarantor
shall, in their sole discretion, divide, classify or reclassify, or later divide, classify or reclassify, such item of Indebtedness,
Disqualified Stock or Preferred Stock in any manner that complies with this Section 10(a) and such item of Indebtedness, Disqualified
Stock or Preferred Stock shall be treated as having been Incurred pursuant to only one of the clauses in Section 10(a)(i), but
may be Incurred partially under one clause and partially under one or more other clauses. Accrual of interest, the accretion of
accreted value, the amortization or accretion of original issue discount, the payment of interest in the form of additional Indebtedness
with the same terms, the payment of dividends on Preferred Stock in the form of additional shares of Preferred Stock of the same
class, the accretion of liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations
in the exchange rate of currencies shall not be deemed to be an Incurrence of Indebtedness for purposes of this Section 10(a) or
Section 10(d). Any Indebtedness under a revolving credit or similar facility shall only be deemed to be Incurred at the time funds
are borrowed. Guarantees of, or obligations in respect of letters of credit, bankers’ acceptances or similar instruments
relating to, or Liens securing, Indebtedness which are otherwise included in the determination of a particular amount of Indebtedness
shall not be included in the determination of such amount of Indebtedness; provided, that the Incurrence of the Indebtedness
represented by such guarantee or letter of credit, as the case may be, was in compliance with this Section 10(a). Indebtedness
that is cash collateralized shall not be deemed to be Indebtedness hereunder to the extent of such cash collateralization. The
principal amount of any Disqualified Stock or Preferred Stock will be equal to the greater of the maximum mandatory redemption
or repurchase price (not including, in either case, any redemption or repurchase premium) or the liquidation preference thereof.


 


(b)  
Limitation on Restricted Payments.


 


(i)             
The Parent Guarantor shall not, and shall not permit any of its Subsidiaries to, directly or indirectly:


 


(1)  
declare or pay any dividend or make any distribution on account of the Parent Guarantor’s or any of its Subsidiaries’
Equity Interests, including any payment made in connection with any merger or consolidation involving the Parent Guarantor (other
than (A) dividends, payments or distributions by the Parent Guarantor payable solely in Equity Interests (other than Disqualified
Stock) of the Parent Guarantor or in options, warrants or other rights to purchase such Equity Interests, or (B) dividends, payments
or distributions by a Subsidiary so long as, in the case of any dividend, payment or distribution payable on or in respect of any
class or series of securities issued by a Subsidiary other than a Subsidiary of the Parent Guarantor that is a Wholly Owned Subsidiary
of the Parent Guarantor, the Parent Guarantor or a Subsidiary receives at least its pro rata share of such dividend or distribution
in accordance with its Equity Interests in such class or series of securities);


 


(2)  
purchase or otherwise acquire or retire for value any Equity Interests of the Parent Guarantor held by any Person other
than the Parent Guarantor or a Subsidiary;


 


(3)  
make any principal payment on, or redeem, repurchase, defease or otherwise acquire or retire for value, in each case prior
to any scheduled repayment or scheduled maturity, any Subordinated Indebtedness (other than the payment, redemption, repurchase,
defeasance, acquisition or retirement of (A) Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation,
principal installment or final maturity, in each case due within one year of the date of such payment, redemption, repurchase,
defeasance, acquisition or retirement and (B) Indebtedness permitted under clauses (6) and (8) of Section 10(a)(ii)); or


 


 


 






    	 	9	 



     


    

 


(4)  
make any Restricted Investment


 


(all such payments and
other actions set forth in clauses (1) through (4) above being collectively referred to as “Restricted Payments”).


 


(ii)           
The provisions of Section 10(b)(i) shall not prohibit:


 


(1)  
the payment of any dividend or distribution or the consummation of any irrevocable redemption within sixty (60) days after
the date of declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration such payment
or the giving of such notice would have complied with the provisions of this Note (assuming, in the case of a redemption payment,
the giving of such notice would have been deemed a Restricted Payment at such time and such deemed Restricted Payment would have
been permitted at such time);


 


(2)  
 (A) the redemption, repurchase, retirement or other acquisition of any Equity Interests (“Retired Capital Stock”)
of the Parent Guarantor or Subordinated Indebtedness of the Company or any Guarantor in exchange for (including any such exchange
pursuant to the exercise of a conversion right or privilege in connection with which cash is paid in lieu of fractional shares),
or out of the proceeds of the substantially concurrent sale of, Equity Interests of the Parent Guarantor or contributions to the
equity capital of the Parent Guarantor (other than any Disqualified Stock or any Equity Interests sold to a Guarantor or to an
employee stock ownership plan or any trust established by the Company or any Guarantor to the extent funded by the Parent Guarantor
and its Subsidiaries) (collectively, including any such contributions, “Refunding Capital Stock”); and (B) the
declaration and payment of accrued dividends on the Retired Capital Stock out of the proceeds of the substantially concurrent sale
(other than to a Subsidiary of the Parent Guarantor or to an employee stock ownership plan or any trust established by the Parent
Guarantor or any of its Subsidiaries) of Refunding Capital Stock;


 


(3)  
the redemption, defeasance, repurchase or other acquisition or retirement of (x) Subordinated Indebtedness of the Company
or any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, new Indebtedness of the
Company or any Guarantor or (y) Disqualified Stock of the Company or any Guarantor made in exchange for, or out of the proceeds
of a substantially concurrent sale of, Disqualified Stock of the Company or any Guarantor, in either case which constitutes Refinancing
Indebtedness under Section 10(a)(i)(11);


 


(4)  
the repurchase, retirement or other acquisition or retirement for value of Equity Interests of the Parent Guarantor held
by any future, present or former employee, director or consultant of the Parent Guarantor or any Subsidiary of the Parent Guarantor
(or the relevant Person’s estate or beneficiary of such Person’s estate) pursuant to any management equity plan or
stock option plan or any other management or employee benefit plan or other agreement or arrangement; provided, however,
that the aggregate amounts paid under this clause (4) do not exceed $2.5 million in any calendar year (with unused amounts in any
calendar year being permitted to be carried over for succeeding calendar years up to a maximum of $5.0 million in the aggregate
in any calendar year);


 


(5)  
 (a) the declaration and payment of dividends or distributions to holders of any class or series of Disqualified Stock of
the Parent Guarantor or Disqualified Stock or Preferred Stock of the Company or any Guarantor and (b) the payment of any redemption
price or liquidation value of any such Disqualified Stock or Preferred Stock when due in accordance with its terms, in each case,
Incurred in accordance with Section 10(a);


 


(6)  
the declaration and payment of dividends or other distributions or payments to holders of Series A Preferred Shares, Series
A Warrants or Series B Warrants pursuant to their terms;


 


(7)  
other Restricted Payments in an aggregate amount since the Original Issuance Date not to exceed the greater of (x) $10.0
million and (y) 2.5% of Total Assets at the time of such Restricted Payment;


 


(8)  
repurchases of Equity Interests deemed to occur upon exercise of stock options or warrants or other rights if such Equity
Interests represent a portion of the exercise price of such options or warrants and payments in cash in lieu of the issuance of
fractional shares;


 


 


 






    	 	10	 



     


    

 


(9)  
purchases of receivables pursuant to a Receivables Repurchase Obligation in connection with a Qualified Receivables Financing
and the payment or distribution of Receivables Fees;


 


(10)        
the payment, purchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness,
Disqualified Stock or Preferred Stock of the Company or a Guarantor pursuant to provisions similar to those described under Section
5(b); provided that, prior to or concurrently with such payment, purchase, redemption, defeasance or other acquisition or
retirement for value, the Company (or a third party to the extent permitted by this Note) have satisfied all obligations pursuant
to Section 5(b); and


 


(11)        
distributions or payments of Receivables Fees, sales contributions and other transfers of and purchases of assets pursuant
to repurchase obligations, in each case in connection with a Qualified Receivables Financing;


 


(12)        
the making of any Restricted Payment in exchange for, or out of or with the net cash proceeds from the substantially concurrent
contribution to the common equity of the Parent Guarantor or from the substantially concurrent sale (other than to a Subsidiary
of the Parent Guarantor) of, Equity Interests (other than Disqualified Stock) of the Parent Guarantor; and


 


(13)        
the payment of cash in lieu of the issuance of fractional shares of Equity Interests in connection with any dividend or
split of, or upon exercise or conversion of warrants, options or other securities exercisable or convertible into, Equity Interests
of the Parent Guarantor or in connection with the issuance of any dividend otherwise permitted to be made.


 


(iii)         
For purposes of this Section 10(b), if any Investment or Restricted Payment would be permitted pursuant to one or more provisions
described above and/or one or more of the exceptions contained in the definition of “Permitted Investments,” the Company
and the Parent Guarantor may classify such Investment or Restricted Payment in any manner that complies with this covenant and
may later reclassify any such Investment or Restricted Payment so long as such Investment or Restricted Payment (as so reclassified)
would be permitted to be made in reliance on the applicable exception as of the date of such reclassification.


 


(c)  
Guarantees. The Parent Guarantor may cause any Subsidiary to execute and deliver to the Holder and the holders of
the Other Notes, a Guarantee Agreement in the form of Exhibit E attached to the Securities Purchase Agreement pursuant to which
such Subsidiary shall guarantee payment of the Notes.


 


(d)  
Limitation on Liens.


 


(i)             
Neither the Parent Guarantor nor any of its Subsidiaries may issue, assume or guarantee any Indebtedness secured by a Lien
(other than a Permitted Lien) upon any asset or property of the Parent Guarantor or such Subsidiary or on any evidences of Indebtedness
or shares of Capital Stock of, or other ownership interests in, any Subsidiary (regardless of whether the asset, property, Indebtedness,
Capital Stock or ownership interests were acquired before or after the date hereof).


 


(ii)           
For purposes of this Section 10(d), if any Lien would be permitted pursuant to one or more of the exceptions contained in
the definition of “Permitted Lien,” the Company and the Parent Guarantor may classify such Lien in any manner that
complies with this covenant and may later reclassify any such Lien so long as such Lien (as so reclassified) would be permitted
to be made in reliance on the applicable exception as of the date of such reclassification.


 


(e)  
Notices. The Company shall promptly, but in any event within one (1) Business Day, notify the Holder in writing whenever
an Event of Default (an “Event of Default Notice”) occurs, and, to the extent required pursuant to Section 24,
the Parent Guarantor shall simultaneously with the delivery of such notice to the Holder, file a Current Report on Form 8-K with
the SEC to state such fact.


 


 


 






    	 	11	 



     


    

 


(f)   
Minimum Cash Covenants. The Parent Guarantor (not including its Subsidiaries) shall maintain on deposit unrestricted
and unencumbered cash and/or Marketable Securities in an aggregate amount equal to not less than $25,000,000. In addition, Subsidiaries
of the Parent Guarantor, other than (x) Acacia Research Group, LLC (“ARG”) and (y) the Subsidiary of the Parent
Guarantor, other than ARG, that holds the greatest amount of unrestricted and unencumbered cash and or Marketable Securities, shall
maintain on deposit unrestricted and unencumbered cash and/or Marketable Securities in an aggregate amount equal to not less than
$25,000,000.


 


(g)  
Non-Guarantor Subsidiaries.


 


(i)             
The Parent Guarantor shall not permit any of its Subsidiaries that are not Guarantors (“Non-Guarantor Subsidiaries”)
to, directly or indirectly;


 


(1)  
Incur any Indebtedness (including Acquired Indebtedness) or issue any shares of Disqualified Stock and the Parent Guarantor
shall not permit any of the Non-Guarantor Subsidiaries to issue any shares of Preferred Stock;


 


(2)  
assume or guarantee any Indebtedness secured by a Lien upon any asset or property of such Non-Guarantor Subsidiary or on
any evidences of Indebtedness or shares of Capital Stock of, or other ownership interests in, any Non-Guarantor Subsidiary (regardless
of whether the asset, property, Indebtedness, Capital Stock or ownership interests were acquired before or after the date hereof);


 


(3)  
hire any employees or enter into any leases, except (i) if done by ARG in the ordinary course of business or (ii) if required
by applicable law; and


 


(4)  
Except for ARG, engage in any business activities or have any material properties or liabilities, other than (i) activities
related to the maintenance of its corporate existence, (ii) activities related to their ordinary course activities of purchasing
Intellectual Property, (iii) activities related to their ordinary course activities of retaining legal counsel to represent such
non-guarantor subsidiary as a plaintiff in Intellectual Property litigation, (iv) activities to comply with applicable law, (v)
transactions among the Parent Guarantor and its Subsidiaries in their ordinary course of business and (vi) activities, liabilities
and properties incidental to the foregoing clauses (i) through (v), with all such liabilities in total not to exceed an aggregate
of $5,000,000 among all non-guarantor subsidiaries as a whole and $1,000,000 for each non-guarantor subsidiary individually, excluding
legal and professional fees and royalty sharing arrangements accrued in the ordinary course of the patent assertion business.


 


(ii)           
ARG may maintain a balance of Cash and Marketable Securities of no more than $10,000,000 solely in order to conduct its
ordinary course business activities.


 


(11)        
VOTE TO ISSUE, OR CHANGE THE TERMS OF, NOTES. The affirmative vote of the Required Holders at a meeting duly called
for such purpose or the written consent without a meeting of the Required Holders, voting together as a single class, shall be
required for any change or amendment or waiver of any provision to this Note, any of the Other Notes or any of the Additional Company
Notes. Any change, amendment or waiver by the Company and the Required Holders shall be binding on the Holder of this Note and
all holders of the Other Notes and the Additional Company Notes. No consideration shall be offered or paid to any of the holders
of Notes or Additional Company Notes to amend or waive or modify any provision of the Notes, unless the same consideration (other
than the reimbursement of legal fees) is also offered to all of the holders of Notes and Additional Notes. This provision constitutes
a separate right granted to each of the holders of Notes and Additional Notes by the Company and shall not in any way be construed
as such holders acting in concert or as a group with respect to the purchase, disposition or voting of securities or otherwise.


 


(12)        
TRANSFER. The Holder may offer, sell, assign or transfer all or any portion of this Note and the accompanying rights
hereunder without the consent of the Company, subject only to the provisions of Section 2(f) of the Securities Purchase Agreement.


 


 


 






    	 	12	 



     


    

 


(13)        
REISSUANCE OF THIS NOTE.


 


(a)            
Transfer. If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company
will within five (5) Business Days of such surrender, issue and deliver upon the order of the Holder a new Note (in accordance
with Section 13(d) and subject to Section 3), registered as the Holder may request, representing the outstanding Principal being
transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new Note (in accordance with
Section 13(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee, by acceptance
of this Note, acknowledge and agree that, by reason of the provisions of Section 3 following cancellation pursuant to Section 26
or redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated
on the face of this Note.


 


(b)  
Lost, Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of
the loss, theft, destruction or mutilation of this Note, and, in the case of loss, theft or destruction, of any indemnification
undertaking by the Holder to the Company in customary form (but without any obligation to post a surety or other bond) and, in
the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder a new
Note (in accordance with Section 13(d)) representing the outstanding Principal within five (5) Business Days of receipt of such
evidence.


 


(c)  
Note Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder
at the principal office of the Company, for a new Note or Notes within five (5) Business Days of such surrender (in accordance
with Section 13(d)) representing in the aggregate the outstanding Principal of this Note, and each such new Note will represent
such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.


 


(d)            
Issuance of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such
new Note (i) shall be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal
remaining outstanding (or in the case of a new Note being issued pursuant to Section 13(a) or Section 13(c), the Principal designated
by the Holder which, when added to the principal represented by the other new Notes issued in connection with such issuance, does
not exceed the Principal remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have
an issuance date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have
the same rights and conditions as this Note, and (v) shall represent accrued and unpaid Interest and Late Charges, if any, on the
Principal and Interest of this Note, from the Issuance Date.


 


(14)        
REMEDIES, CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note
shall be cumulative and in addition to all other remedies available under this Note and any of the other Transaction Documents
at law or in equity (including a decree of specific performance and/or other injunctive relief). No remedy contained herein shall
be deemed a waiver of compliance with the provisions giving rise to such remedy. Nothing herein shall limit the Holder’s
right to pursue actual and consequential damages for any failure by the Company or the Parent Guarantor to comply with the terms
of this Note. The Company and the Parent Guarantor covenant to the Holder that there shall be no characterization concerning this
instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, redemption
and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly
provided herein, be subject to any other obligation of the Company or the Parent Guarantor (or the performance thereof). Each of
the Company and the Parent Guarantor acknowledges that a breach by it of its obligations hereunder will cause irreparable harm
to the Holder and that the remedy at law for any such breach may be inadequate. The Company and the Parent Guarantor therefore
agree that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available
remedies, to an injunction restraining any breach, without the necessity of showing economic loss and without any bond or other
security being required.


 


(15)        
PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed in the hands of an attorney for collection
or enforcement or is collected or enforced through any legal proceeding or the Holder otherwise takes action to collect amounts
due under this Note or to enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization, receivership
of the Company or the Parent Guarantor or other proceedings affecting Company creditors’ rights or the Parent Guarantor creditors’
rights and involving a claim under this Note, then the Company shall pay (and the Parent Guarantor shall cause the Company to pay)
the costs incurred by the Holder for such collection, enforcement or action or in connection with such bankruptcy, reorganization,
receivership or other proceeding, including, but not limited to, attorneys’ fees and disbursements.


 


 


 






    	 	13	 



     


    

 


(16)        
CONSTRUCTION; HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the Parent Guarantor and
all the Buyers and shall not be construed against any Person as the drafter hereof. The headings of this Note are for convenience
of reference and shall not form part of, or affect the interpretation of, this Note.


 


(17)        
FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right
or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right, power or privilege.


 


(18)        
DISPUTE RESOLUTION. In the case of a dispute as to the arithmetic calculation of any Redemption Price, the Company
shall pay the applicable Redemption Price that is not disputed, and the Company shall submit the disputed arithmetic calculations
within two (2) Business Days of the delivery of the Redemption Notice or other event giving rise to such dispute, as the case may
be, to the Holder. If the Holder and the Company are unable to agree upon such determination or calculation within three (3) Business
Days of such disputed arithmetic calculation being submitted to the Holder, then the Company shall, within two (2) Business Days
submit the disputed arithmetic calculation of any Redemption Price to an independent, outside accountant, selected by the Holder
and approved by the Company, such approval not to be unreasonably withheld, conditioned or delayed. The Company, at its expense,
shall cause the accountant to perform the calculations and notify the Company and the Holder of the results no later than five
(5) Business Days from the time it receives the disputed calculations. Such accountant’s calculation shall be binding upon
all parties absent demonstrable error.


 


(19)        
NOTICES; PAYMENTS.


 


(a)            
Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall
be given in accordance with Section 9(f) of the Securities Purchase Agreement. The Company or the Parent Guarantor (as applicable)
shall provide the Holder with prompt written notice of all actions taken pursuant to this Note, including in reasonable detail
a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company or the Parent
Guarantor (as applicable) shall give written notice to the Holder at least ten (10) Business Days prior to the date on which the
Company or the Parent Guarantor (as applicable) closes its books or takes a record (A) with respect to any dividend or distribution
upon the Common Stock, (B) with respect to any pro rata subscription offer to holders of Common Stock or (C) for determining rights
to vote with respect to any Fundamental Transaction or Liquidation Event.


 


(b)            
Payments. Whenever any payment of cash is to be made by the Company to any Person pursuant to this Note, such payment
shall be made in lawful money of the United States of America via wire transfer of immediately available funds to an account designated
by the Holder; provided, that the Holder, upon written notice to the Company, may elect to receive a payment of cash in
lawful money of the United States of America by a check drawn on the account of the Company and sent via overnight courier service
to such Person at such address as previously provided to the Company in writing (which address, in the case of each of the Buyers,
shall initially be as set forth on the Schedule of Buyers attached to the Securities Purchase Agreement). Whenever any amount expressed
to be due by the terms of this Note is due on any day which is not a Business Day, the same shall instead be due on the next succeeding
day which is a Business Day. Any amount due under the Transaction Documents which is not paid when due shall result in a late charge
being incurred and payable by the Company in an amount equal to interest on such amount at the rate of six percent (6.0%) per annum
from the date such amount was due until the same is paid in full (“Late Charge”).


 


(20)        
CANCELLATION. After all Principal, any accrued Interest and any other amounts at any time owed on this Note have
been paid in full, this Note shall automatically be deemed canceled and shall not be reissued, sold or transferred.


 


(21)        
WAIVER OF NOTICE. To the extent permitted by law, the Company and the Parent Guarantor hereby waive demand, notice,
protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this
Note.


 


 


 






    	 	14	 



     


    

 


(22)        
GOVERNING LAW; JURISDICTION; JURY TRIAL. This Note shall be governed by and construed and enforced in accordance
with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by,
the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than
the State of New York. Each of the Company and the Parent Guarantor hereby irrevocably (i) submits to the exclusive jurisdiction
of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is
improper, and (ii) irrevocably waives personal service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof to the Company and the Parent Guarantor at the address set forth with respect to the Parent
Guarantor in Section 9(f) of the Securities Purchase Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or
taking other legal action against the Company or the Parent Guarantor in any other jurisdiction to collect on the Company’s
or the Parent Guarantor’s obligations to the Holder, to realize on any collateral or any other security for such obligations,
or to enforce a judgment or other court ruling in favor of the Holder. EACH OF THE COMPANY AND PARENT GUARANTOR HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


(23)        
Severability. If any provision of this Note is prohibited by law or
otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be
prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Note
so long as this Note as so modified continues to express, without material change, the original intentions of the Company, the
Parent Guarantor and the Holder as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the Company, the
Parent Guarantor or the Holder or the practical realization of the benefits that would otherwise be conferred upon the Company,
the Parent Guarantor or the Holder. The Company, the Parent Guarantor and the Holder will endeavor in good faith negotiations to
replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as
possible to that of the prohibited, invalid or unenforceable provision(s).


 


(24)        
DISCLOSURE. Except if an individual affiliated with the Holder serves on the Board, including pursuant to the Governance
Agreement, upon receipt or delivery by the Parent Guarantor of any notice in accordance with the terms of this Note, unless the
Parent Guarantor has in good faith determined that the matters relating to such notice do not constitute material, nonpublic information
relating to the Parent Guarantor or any of its Subsidiaries, the Parent Guarantor shall contemporaneously with any such receipt
or delivery publicly disclose such material, nonpublic information on a Current Report on Form 8-K or otherwise. In the event that
the Parent Guarantor believes that a notice contains material, nonpublic information relating to the Parent Guarantor or any of
its Subsidiaries, the Parent Guarantor so shall indicate to the Holder contemporaneously with delivery of such notice, and in the
absence of any such indication, the Holder shall be allowed to presume that all matters relating to such notice do not constitute
material, nonpublic information relating to the Parent Guarantor or any of its Subsidiaries.


 


(25)        
USURY. This Note is subject to the express condition that at no time shall the Company be obligated or required to
pay interest hereunder at a rate or in an amount which could subject the Holder to either civil or criminal liability as a result
of being in excess of the maximum interest rate or amount which the Company is permitted by applicable law to contract or agree
to pay. If by the terms of this Note, the Company is at any time required or obligated to pay interest hereunder at a rate or in
an amount in excess of such maximum rate or amount, the rate or amount of interest under this Note shall be deemed to be immediately
reduced to such maximum rate or amount and the interest payable shall be computed at such maximum rate or be in such maximum amount
and all prior interest payments in excess of such maximum rate or amount shall be applied and shall be deemed to have been payments
in reduction of the principal balance of this Note.


 


 


 






    	 	15	 



     


    

 


(26)        
CANCELLATION IN CONNECTION WITH SERIES B WARRANT EXERCISE. All or any portion of the Principal amount outstanding
under this Note may, at the election of the Holder, in its sole and absolute discretion, be surrendered to the Company from time
to time for cancellation in payment of the Other Exercise Price in accordance with the terms of the Series B Warrants. Any (A)
accrued and unpaid Interest with respect to the Principal amount cancelled pursuant to the immediately preceding sentence and (B)
accrued and unpaid Late Charges, if any, with respect to such Principal and Interest, shall be paid in cash by wire transfer of
immediately available funds pursuant to wire instructions provided by the Holder in writing to the Company on the applicable Share
Delivery Date (as defined in the Series B Warrants) and shall not be cancelled in payment of the Other Exercise Price upon exercise
of the Series B Warrants.


 


(27)        
CERTAIN DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:


 


(a)            
“Acquired Indebtedness” means, with respect to any specified Person:


 


(i)             
Indebtedness of any other Person existing at the time such other Person (a) is merged with or into (or consolidated or otherwise
combined with the Parent Guarantor or any Subsidiary) or (b) became a Subsidiary of such specified Person, and


 


(ii)           
Indebtedness secured by a Lien encumbering any asset acquired by such specified Person,


 


in each case, including
Indebtedness Incurred as consideration in, in contemplation of, or to provide all or any portion of the funds or credit support
utilized to consummate, the transaction or series of related transactions pursuant to which such Subsidiary became a Subsidiary
or was otherwise acquired by such Person, or such asset was acquired by such Person, as applicable.


 


(b)            
“Additional Closing Date” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(c)            
“Additional Company Notes” means: (i) all Senior Secured Notes, if any, issued by the Company pursuant
to the Securities Purchase Agreement on an Additional Closing Date that is not the Issuance Date, (ii) all Senior Secured Notes,
if any, issued by the Company in an Exchange (as defined in the Certificate of Designations).


 


(d)            
“Additional Notes” means the Additional Company Notes and the Additional Parent Guarantor Notes.


 


(e)            
“Additional Parent Guarantor Notes” means: (i) all Senior Secured Notes, if any, issued by the Parent
Guarantor pursuant to the Securities Purchase Agreement on an Additional Closing Date that is not the Issuance Date, (ii) all Senior
Secured Notes, if any, issued by the Parent Guarantor in an Exchange (as defined in the Certificate of Designations) and (iii)
all Stockholders Notes.


 


(f)             
“Additional Securities” means (i) the Additional Notes and (ii) all Series A Preferred Shares issued
by the Parent Guarantor pursuant to the Securities Purchase Agreement on the Initial Closing Date.


 


(g)            
“Affiliate” shall have the meaning ascribed to such term in Rule 405 of the Securities Act.


 


(h)            
“Approved Investment” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(i)             
“Available Amount Basket” means an amount equal to (i) $100,000,000 minus (ii) the amount of (A)
Permitted Debt then outstanding incurred pursuant to Section 10(a)(i)(1) or Section 10(a)(i)(22), (B) the cumulative amount of
all liabilities of any Non-Guarantor Subsidiaries, including any liabilities of such Non-Guarantor Subsidiaries appearing on the
balance sheet of the Parent Guarantor as of the latest date for which financial statements are available and any liabilities of
any Non-Guarantor Subsidiaries to the Parent Guarantor or any other Subsidiary of the Parent Guarantor and (C) the aggregate amount
of cash, Cash Equivalents and Marketable Securities held by Non-Guarantor Subsidiaries.


 


 


 






    	 	16	 



     


    

 


(j)             
“Board” means the Board of Directors of the Parent Guarantor.


 


(k)            
“Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The
City of New York are authorized or required by law to remain closed.


 


(l)             
“Buyer” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(m)          
“Capital Stock” means:


 


(i)             
in the case of a corporation, corporate stock;


 


(ii)           
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;


 


(iii)         
in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited);
and


 


(iv)          
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person.


 


(n)            
“Cash Equivalents” means:


 


(i)             
U.S. Dollars, pounds sterling, euros, the national currency of any participating member state of the European Union or,
in the case of any foreign Subsidiary, such local currencies held by it from time to time in the ordinary course of business;


 


(ii)           
securities issued or directly and fully guaranteed or insured by the government of the United States or any country that
is a member of the European Union or any agency or instrumentality thereof in each case with maturities not exceeding two (2) years
from the date of acquisition;


 


(iii)         
certificates of deposit, time deposits and eurodollar time deposits with maturities of one year or less from the date of
acquisition, bankers’ acceptances, in each case with maturities not exceeding one year, and overnight bank deposits, in each
case with any commercial bank having capital and surplus in excess of $500 million, or the foreign currency equivalent thereof,
and whose long-term debt is rated “A” or the equivalent thereof by Moody’s or S&P (or reasonably equivalent
ratings of another internationally recognized ratings agency);


 


(iv)          
repurchase obligations for underlying securities of the types described in clauses (ii) and (iii) above entered into with
any financial institution meeting the qualifications specified in clause (iii) above;


 


(v)            
commercial paper issued by a corporation (other than an Affiliate of the Parent Guarantor) rated at least “A-1”
or the equivalent thereof by Moody’s or S&P (or reasonably equivalent ratings of another internationally recognized ratings
agency) and in each case maturing within one year after the date of acquisition;


 


(vi)          
readily marketable direct obligations issued by any state of the United States of America or any political subdivision thereof
having one of the two highest rating categories obtainable from either Moody’s or S&P (or reasonably equivalent ratings
of another internationally recognized ratings agency) in each case with maturities not exceeding two (2) years from the date of
acquisition;


 


(vii)        
Indebtedness issued by Persons with a rating of “A” or higher from S&P or “A-2” or higher from
Moody’s in each case with maturities not exceeding two (2) years from the date of acquisition; and


 


 


 






    	 	17	 



     


    

 


(viii)      
investment funds investing at least 95% of their assets in securities of the types described in clauses (i) through (vii)
above.


 


(o)            
“Certificate of Designations” has the meaning ascribed to such term in the Securities Purchase Agreement.


 


(p)            
“Change of Control” means any Fundamental Transaction, other than (i) an Approved Investment, (ii) any
reorganization, recapitalization or reclassification of Common Stock in which holders of the Parent Guarantor’s voting power
immediately prior to such reorganization, recapitalization or reclassification continue after such reorganization, recapitalization
or reclassification to hold publicly traded securities and, directly or indirectly, are, in all material respects, the holders
of the voting power of the surviving entity (or entities with the authority or voting power to elect the members of the board of
directors (or their equivalent if other than a corporation) of such entity or entities) after such reorganization, recapitalization
or reclassification or (iii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction of incorporation
of the Parent Guarantor; provided, however, that a Change of Control will be deemed not to have occurred if ninety
percent (90%) or more of the consideration in the transaction or transactions which otherwise would constitute a Change of Control
consists of shares of common stock, depositary receipts or other certificates representing common equity interests traded or to
be traded immediately following such transaction on an Eligible Market.


 


(q)            
“Collateral” shall have the meaning ascribed to such term in the Security Documents.


 


(r)             
“Collateral Agent” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(s)            
“Common Stock” means (i) the Parent Guarantor’s shares of common stock, par value $0.001 per
share and (ii) any capital stock into which such Common Stock shall be changed or any capital stock resulting from a reorganization,
recapitalization or reclassification of such Common Stock.


 


(t)             
“Consolidated” means, when used to modify a financial term, test, statement, or report of a Person, the
application or preparation of such term, test, statement or report (as applicable) based upon the consolidation, in accordance
with GAAP, of the financial condition or operating results of such Person and its Subsidiaries.


 


(u)            
“Credit Facilities” means one or more debt facilities or other financing arrangements (including, without
limitation, commercial paper facilities or indentures) providing for revolving credit loans, term loans, letters of credit or other
long-term indebtedness, including any notes, mortgages, guarantees, collateral documents, instruments and agreements executed in
connection therewith, and any amendments, supplements, modifications, extensions, renewals, restatements or refundings thereof
and any indentures or credit facilities or commercial paper facilities that replace, refund or refinance any part of the loans,
notes, other credit facilities or commitments thereunder, including any such replacement, refunding or refinancing facility or
indenture that increases the amount permitted to be borrowed thereunder or alters the maturity thereof or adds Subsidiaries as
additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.


 


(v)            
“Customary Intercreditor Agreement” means (a) to the extent executed in connection with the incurrence
or assumption of secured Indebtedness, the Liens on the Collateral securing such Indebtedness which are intended to rank equal
in priority to the Liens on the Collateral securing the Securities and the Guarantees (but without regard to the control of remedies),
a customary intercreditor agreement in form and substance reasonably acceptable to the Required Holders and the Company, which
agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank equal in priority to the Liens on
the Collateral securing the Securities and the Guarantees (but without regard to the control of remedies) and (b) to the extent
executed in connection with the incurrence or assumption of secured Indebtedness, the Liens on the Collateral securing such Indebtedness
which are intended to rank junior (or senior, as applicable) in priority to the Liens on the Collateral securing the Securities
and the Guarantees, a customary intercreditor agreement in form and substance reasonably acceptable to the Required Holders and
the Company, which agreement shall provide that the Liens on the Collateral securing such Indebtedness shall rank junior (or senior,
as applicable) in priority to the Lien on the Collateral securing the Securities and the Guarantees.


 


 


 






    	 	18	 



     


    

 


(w)          
“Designee” means Starboard Value LP or any of its Affiliates.


 


(x)            
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which, by its
terms (or by the terms of any security into which it is convertible or for which it is redeemable or exchangeable), or upon the
happening of any event:


 


(i)             
matures or is mandatorily redeemable for cash or in exchange for Indebtedness, pursuant to a sinking fund obligation or
otherwise (other than as a result of a change of control or asset sale; provided that the relevant asset sale or change
of control provisions, taken as a whole, are no more favorable in any material respect to holders of such Capital Stock than the
asset sale and change of control provisions applicable to the Notes and the Additional Notes and any purchase requirement triggered
thereby may not become operative until (or contemporaneously with) compliance with the asset sale and change of control provisions
applicable to the Notes and the Additional Notes (including the purchase of any Notes and Additional Notes tendered pursuant thereto)),


 


(ii)           
is convertible or exchangeable for Indebtedness or Disqualified Stock at the option of the holder thereof, or


 


(iii)         
is redeemable at the option of the holder thereof, in whole or in part,


 


in each case prior to
ninety one (91) days after the maturity date of the Notes and the Additional Notes; provided, however, that only
the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable
at the option of the holder thereof prior to such date shall be deemed to be Disqualified Stock; provided, further,
however, that if such Capital Stock is issued to any employee or to any plan for the benefit of employees of the Parent
Guarantor, the Company or any of their respective Subsidiaries or by any such plan to such employees, such Capital Stock shall
not constitute Disqualified Stock solely because it may be required to be repurchased by the Parent Guarantor or the Company in
order to satisfy applicable statutory or regulatory obligations or as a result of such employee’s termination, death or disability;
provided, further, that any class of Capital Stock of such Person that by its terms authorizes such Person to satisfy
its obligations thereunder by delivery of Capital Stock that is not Disqualified Stock shall not be deemed to be Disqualified Stock.


 


(y)  
 “Eligible Market” means the Principal Market, The New York Stock Exchange, The Nasdaq Capital Market,
The Nasdaq Global Market or the NYSE American.


 


(z)            
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into, or exchangeable for, Capital Stock other than the Stockholders Notes).


 


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


 


(bb)        
“Exchange Agreement” means that certain Exchange Agreement dated as of June [30], 2020 by and among the
Company, the Parent Guarantor and the Designee.


 


(cc)         
“Exchanged Notes” means those certain senior secured notes issued by the Parent Guarantor pursuant to
the Securities Purchase Agreement on the Original Issuance Date that were exchanged for the Notes by the holders thereof on the
Issuance Date.


 


(dd)        
“Fair Market Value” means, with respect to any asset or property, the price which could be negotiated
in an arm’s-length, free market transaction, for cash, between a willing seller and a willing and able buyer, neither of
whom is under undue pressure or compulsion to complete the transaction, as determined by the Company in its good faith discretion.
“Fair Market Value” may be (but need not be) conclusively established by means of resolutions of the Board setting
out such Fair Market Value as determined by the Board in good faith.


 


 


 






    	 	19	 



     


    

 


(ee)         
“Finance Lease Obligation” means, at the time any determination thereof is to be made, the amount of
the liability in respect of a finance lease that would at such time be required to be capitalized and reflected as a liability
on a balance sheet (excluding the footnotes thereto) in accordance with GAAP as in effect as of the applicable time of determination.


 


(ff) “Fundamental
Transaction” means (A) that the Parent Guarantor or the Company shall, directly or indirectly, including through Subsidiaries,
Affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Parent
Guarantor or the Company is the surviving corporation) another Subject Entity, or (ii) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of the properties or assets of the Parent Guarantor, the Company or any of their respective
“significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Subject Entities, or (iii) make,
or allow one or more Subject Entities to make, or allow the Parent Guarantor or the Company to be subject to or have its Common
Stock be subject to or party to one or more Subject Entities making, a purchase, tender or exchange offer that is accepted by the
holders of more than either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock
calculated as if any shares of Common Stock held by all Subject Entities making or party to, or Affiliated with any Subject Entities
making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock
such that all Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such purchase, tender
or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of more than 50%
of the outstanding shares of Common Stock, or (iv) consummate a stock purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Subject Entities whereby
all such Subject Entities, individually or in the aggregate, acquire, either (x) more than 50% of the outstanding shares of Common
Stock, (y) more than 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the
Subject Entities making or party to, or Affiliated with any Subject Entity making or party to, such stock purchase agreement or
other business combination were not outstanding; or (z) such number of shares of Common Stock such that the Subject Entities become
collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the outstanding shares
of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the
Parent Guarantor or the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one
or more related transactions, allow any Subject Entity individually or the Subject Entities in the aggregate to be
or become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, whether
through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common
Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization,
recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) more than 50% of the aggregate ordinary
voting power represented by issued and outstanding shares of Common Stock, (y) more than 50% of the aggregate ordinary voting power
represented by issued and outstanding shares of Common Stock not held by all such Subject Entities as of the Subscription Date
calculated as if any shares of Common Stock held by all such Subject Entities were not outstanding, or (z) a percentage of the
aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the
Parent Guarantor or the Company, as applicable, sufficient to allow such Subject Entities to effect a statutory short form merger
or other transaction requiring other stockholders of the Parent Guarantor or the Company, as applicable, to surrender their shares
of Common Stock without approval of the stockholders of the Parent Guarantor or the Company, as applicable, or (C) that the Parent
Guarantor or the Company shall, directly or indirectly, including through Subsidiaries, Affiliates or otherwise, in one or more
related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent,
or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner
otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any
portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction.


 


(gg)        
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment
of the accounting profession, in the United States, consistently applied during the periods involved. For the avoidance of doubt
the terms “consolidated” and “Consolidated” with respect to any Person shall mean such Person consolidated
with its Subsidiaries.


 


(hh)        
“Governance Agreement” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(ii)           
“Group” means a “group” as that term is used in Section 13(d) of the Exchange Act and as
defined in Rule 13d-5 thereunder.


 


 


 






    	 	20	 



     


    

 


(jj)           
“Guarantee” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(kk)        
“Guarantor” shall have the meaning ascribed to such term in the Securities Purchase Agreement. For the
avoidance of doubt, as of the Issuance Date the Parent Guarantor is the sole Guarantor.


 


(ll)           
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under (1) currency
exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency
exchange, interest rate or commodity collar agreements and (2) other agreements or arrangements designed to protect such Person
against fluctuations in currency exchange, interest rates or commodity prices.


 


(mm)    
“Incur” (including, with correlative meaning, the term “Incurrence”) means issue,
assume, guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Equity
Interests of a Person existing at the time such Person becomes a Subsidiary (whether by merger, consolidation, acquisition or otherwise)
shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary.


 


(nn)        
“Indebtedness” means, with respect to any Person, without duplication: (1) the principal and premium
(if any) of any indebtedness of such Person, whether or not contingent, (a) in respect of borrowed money, (b) evidenced by bonds,
notes, debentures or similar instruments or letters of credit or bankers’ acceptances (or, without duplication, reimbursement
agreements in respect thereof), with the amount of letters of credit and bankers’ acceptances being the amount equal to the
amount available to be drawn, (c) representing the deferred and unpaid purchase price of any property (except trade payables and
similar obligations) which purchase price is due more than one year after the later of the date of placing the property in service
or taking delivery and title thereto, or (d) in respect of Finance Lease Obligations, if and to the extent that any of the foregoing
indebtedness (other than letters of credit) would appear as a liability on a balance sheet (excluding the footnotes thereto) of
such Person prepared in accordance with GAAP as in effect on the applicable date of determination; (2) to the extent not otherwise
included, any obligation of such Person to be liable for, or to pay, as obligor, guarantor or otherwise, on the Indebtedness of
another Person (other than by endorsement of negotiable instruments for collection in the ordinary course of business); and (3)
to the extent not otherwise included, the principal component of Indebtedness of another Person secured by a Lien on any asset
owned by such Person (whether or not such Indebtedness is assumed by such Person); provided, however, that the amount
of such Indebtedness will be the lesser of: (a) the Fair Market Value of such asset at such date of determination, and (b) the
amount of such Indebtedness of such other Person.


 


(oo)        
“Initial Closing Date” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(pp)        
“Intellectual Property” has the meaning ascribed to such term in the Security Agreement.


 


(qq)        
“Interest Rate” means 6.00% per annum, subject to adjustment as set forth in Section 2.


 


(rr)          
“Investments” means, with respect to any Person, all investments by such Person in other Persons (including
Affiliates) in the form of loans (including guarantees), advances or capital contributions (excluding accounts receivable, trade
credit and advances to customers and suppliers and commission, travel and similar advances to officers, employees and consultants
made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or
other securities issued by any other Person.


 


(ss)          
“Investment Grade Securities” means:


 


(i)             
securities issued or directly and fully guaranteed or insured by the U.S. government or any agency or instrumentality thereof
(other than Cash Equivalents) and in each case with maturities not exceeding two (2) years from the date of acquisition,


 


 


 






    	 	21	 



     


    

 


(ii)           
securities that have a rating equal to or higher than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent)
by S&P, or, if Moody’s or S&P ceases to rate the securities for reasons outside of the Company’s control, an
equivalent rating by any other “nationally recognized statistical rating organization,” as such term is defined under
Section 3(a)(62) under the Exchange Act selected by the Company as a replacement agency for Moody’s or S&P, as the case
may be,


 


(iii)         
investments in any fund that invests at least 95% of its assets in investments of the type described in clauses (i) and
(ii) which fund may also hold immaterial amounts of cash pending investment and/or distribution, and


 


(iv)          
corresponding instruments in countries other than the United States customarily utilized for high quality investments and
in each case with maturities not exceeding two (2) years from the date of acquisition.


 


(tt)           
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit, arrangement, encumbrance, security
interest, lien (statutory or otherwise), or preference, priority or other security or similar agreement or preferential arrangement
of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement having
substantially the same economic effect as any of the foregoing); provided that in no event shall an operating lease be deemed
to constitute a Lien.


 


(uu)        
“Liquidation Event” means the voluntary or involuntary liquidation, dissolution or winding up of the
Parent Guarantor or such Subsidiaries the assets of which constitute all or substantially all of the assets of the business of
the Parent Guarantor and its Subsidiaries taken as a whole, in a single transaction or series of transactions, or adoption of any
plan for the same.


 


(vv)        
“Make-Whole Amount” means the excess of:


 


(1)  
the present value at such Change of Control Redemption Date of (i) the applicable Redemption Amount of the Notes being redeemed,
plus (ii) all required Interest payments due on such Notes through the Maturity Date (excluding accrued but unpaid interest), computed
using a discount rate equal to the Treasury Rate as of such Change of Control Redemption Date plus 50 basis points; over


 


(2)  
the then outstanding Principal amount of this Note.


 


(ww)     
“Marketable Securities” means, any readily marketable equity securities (i) that are traded on an Eligible
Market or the Principal Market, (ii) that are eligible for sale without restriction or limitation pursuant to Rule 144 and without
the requirement to be in compliance with Rule 144(c)(1) (or any successor thereto) promulgated under the Securities Act, (iii)
that are not subject to any trading restriction by virtue of possession by the Parent Guarantor or any Subsidiary of any material,
nonpublic information about the issuer of such equity securities, (iv) with respect to which the Parent Guarantor or any Subsidiary
is not filing a Schedule 13D pursuant to Section 13 of the Exchange Act and the rules and regulations promulgated thereunder, (v)
with respect to which the Parent Guarantor or any Subsidiary is not subject to Section 16 of the Exchange Act and (vi) that are
issued by an issuer having a total equity market capitalization of not less than $75,000,000.


 


(xx)        
“Moody’s” means Moody’s Investors Services, Inc. or any successor to the rating agency business
thereof.


 


(yy)        
“Obligations” means any principal, interest, premium, if any, penalties, fees, indemnifications, reimbursements,
expenses, damages or other liabilities or amounts payable under the documentation governing or otherwise in respect of any Indebtedness.


 


(zz)         
“Obligors” means the Company, the Guarantors and the Pledged Subsidiaries.


 


(aaa)      
“Officer” means, with respect to any Person, the Chairman of the Board, Chief Executive Officer, Chief
Financial Officer, President, any Executive Vice President, Senior Vice President or Vice President (whether or not designated
by a number or a word or words added before or after the title “Vice President”), the Treasurer, the Secretary or the
Assistant Secretary of such Person, or any direct or indirect parent of such Person, as applicable, or other Person performing
such functions, regardless of title or designated as an “Officer” by the Board of Directors for purposes of this Note.


 


 


 






    	 	22	 



     


    

 


(bbb)     
“Officer’s Certificate” means a certificate signed on behalf of the Company and the Parent Guarantor
by an Officer of the Company and an Officer of the Parent Guarantor and delivered to the Holder.


 


(ccc)      
“Original Issuance Date” means June 4, 2020.


 


(ddd)     
“Other Exercise Price” shall have the meaning ascribed to such term in the Series B Warrants.


 


(eee)      
“Parent Entity” of a Person means an entity that, directly or indirectly, controls the applicable Person,
including such entity whose common capital stock or equivalent equity security is quoted or listed on an Eligible Market (or, if
so elected by the Required Holders, any other market, exchange or quotation system), or, if there is more than one such Person
or such entity, the Person or such entity designated by the Required Holders or in the absence of such designation, such Person
or entity with the largest public market capitalization as of the date of consummation of the Fundamental Transaction.


 


(fff)        
“Parent Guarantee” means that certain guarantee agreement entered into by the Parent Guarantor as
of the Issuance Date.


 


(ggg)     
“Parent Guarantor” means Acacia Research Corporation, a Delaware corporation.


 


(hhh)     
“Permitted Investments” means:


 


(i)             
any Investment in the Parent Guarantor or the Company (including the Notes and the Additional Notes);


 


(ii)           
any Investment in cash or Cash Equivalents, Investment Grade Securities or Marketable Securities, provided that such
assets constitute Collateral;


 


(iii)         
any Approved Investment;


 


(iv)          
any Investment (x) existing on the Subscription Date, (y) made pursuant to binding commitments (whether or not subject
to conditions) in effect on the Subscription Date or (z) that replaces, refinances, refunds, renews or extends any Investment described
under either of the immediately preceding clauses (x) or (y), provided that any such Investment is in an amount that does
not exceed the amount replaced, refinanced, refunded, renewed or extended unless required by the terms of the Investment or otherwise
permitted hereunder;


 


(v)            
any Investment acquired by the Parent Guarantor or any of its Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Parent Guarantor or any such Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization
or recapitalization of the Parent Guarantor or such other Investment or accounts receivable, (b) in satisfaction of judgments against
other Persons, or (c) as a result of a foreclosure by the Parent Guarantor or any of its Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment in default;


 


(vi)          
Hedging Obligations entered into (1) for the purpose of fixing, managing or hedging interest rate risk with respect to any
Indebtedness that is permitted by the terms of this Note to be outstanding; (2) for the purpose of fixing, managing or hedging
currency exchange rate risk with respect to any currency exchanges; or (3) for the purpose of fixing, managing or hedging commodity
price risk with respect to any commodity purchases;


 


(vii)        
Investments the payment for which consists of Equity Interests of the Parent Guarantor (other than Disqualified Stock);


 


(viii)      
guarantees issued in accordance with Section 10(a);


 


 


 






    	 	23	 



     


    

 


(ix)          
any Investment by (A) the Company in the Parent Guarantor, (B) Guarantors in other Guarantors or (C) Pledged Subsidiaries
(other than the Company and any Guarantor) in other Pledged Subsidiaries; provided that such Pledged Subsidiary into which
such Investment is made has no material third-party liabilities and is not engaging in any activities or aware of any event that
would reasonably be expected to lead to a material third-party liability;


 


(x)            
Investments consisting of purchases and acquisitions of (i) inventory, supplies, materials and equipment by a Guarantor,
(ii) Intellectual Property assets or (iii) contract rights, royalty rights, revenue streams, licenses or leases of Intellectual
Property, in each case in the ordinary course of business and, with respect to clauses (ii) and (iii), in an aggregate amount since
the Original Issuance Date not to exceed $50,000,000;


 


(xi)          
any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection
with a Qualified Receivables Financing, including Investments of funds held in accounts permitted or required by the arrangements
governing such Qualified Receivables Financing or any related Indebtedness; provided, however, that any Investment
in a Receivables Subsidiary is in the form of cash, a Purchase Money Note, contribution of additional receivables or an equity
interest;


 


(xii)        
Investments of a Guarantor acquired after the Subscription Date or of an entity merged into or consolidated with a Guarantor
in a transaction that is not prohibited by Section 5(a) after the Subscription Date to the extent that such Investments were not
made in contemplation of such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger
or consolidation;


 


(xiii)      
Investments in receivables owing to the Parent Guarantor or any Subsidiary created or acquired in the ordinary course of
business;


 


(xiv)      
advances in the form of a prepayment of expense to vendors, suppliers and trade creditors consistent with their past practices,
so long as such expenses were incurred in the ordinary course of business;


 


(xv)        
Investment in or repurchases of this Note, the Other Notes, the Additional Notes, the Series A Preferred Shares or the Warrants;


 


(xvi)      
Investments resulting from the acquisition of a Person, otherwise permitted by this Note, which Investments at the time
of such acquisition were held by the acquired Person and were not acquired in contemplation of the acquisition of such Person;


 


(xvii)    
Investments consisting of earnest money deposits required in connection with a purchase agreement, or letter of intent,
or other acquisitions to the extent not otherwise prohibited by this Note; and


 


(xviii)   
contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors
in the case of a bankruptcy of the Parent Guarantor.


 


(iii)         
“Permitted Liens” means, with respect to any Person:


 


(i)             
Liens existing on the Subscription Date;


 


(ii)           
Liens affecting property of a corporation or other entity existing at the time it becomes a Subsidiary or at the time it
is merged into or consolidated with the Parent Guarantor or a Subsidiary (provided that such Liens are not incurred in connection
with, or in contemplation of, such entity becoming a Subsidiary or such merger or consolidation and do not extend to or cover property
of the Parent Guarantor or any Subsidiary other than property of the entity so acquired or which becomes a Subsidiary);


 


 


 






    	 	24	 



     


    

 


(iii)         
Liens (including purchase money Liens) existing at the time of acquisition thereof on property acquired after the Subscription
Date or to secure Indebtedness Incurred prior to or, at the time of the acquisition thereof for the purpose of financing all or
part of the purchase price of property acquired after the Subscription Date (provided that such Liens do not extend to or
cover any property of the Parent Guarantor or any of its Subsidiaries other than the property so acquired);


 


(iv)          
Liens on any property acquired, developed, constructed or otherwise improved by the Parent Guarantor or any Subsidiary of
the Parent Guarantor (including Liens on the Equity Interests of any Subsidiary of the Parent Guarantor and substantially all assets
of such Subsidiary, in each case to the extent such property constitutes substantially all of the business of such Subsidiary)
to secure or provide for the payment of any part of the purchase price of the property or the cost of the development, construction
or improvement thereof (including architectural, engineering, financing, consultant, advisor and legal fees and preopening costs),
or any Indebtedness incurred to provide funds for such purposes, or any Lien on any such property existing at the time of acquisition
thereof;


 


(v)            
Liens which secure Indebtedness or other obligations of a Guarantor owing to a Guarantor permitted to be Incurred in accordance
with Section 10(a), which may be senior, pari passu or junior in right of payment and priority to the security interests established
by the Security Documents in accordance with a Customary Intercreditor Agreement;


 


(vi)          
Liens to government entities, including pollution control or industrial revenue bond financing;


 


(vii)        
Liens required by any contract or statute in order to permit the Parent Guarantor or a Subsidiary of the Parent Guarantor
to perform any contract or subcontract made by it with or at the request of a governmental entity;


 


(viii)      
mechanic’s, materialman’s, carrier’s or other like Liens, arising in the ordinary course of business;


 


(ix)          
Liens for taxes or assessments and similar charges;


 


(x)            
zoning restrictions, easements, licenses, covenants, reservations, restrictions on the use of real property and certain
other minor irregularities of title;


 


(xi)          
Liens required by an escrow agreement in connection with the incurrence of Indebtedness otherwise permitted under this Agreement;


 


(xii)        
pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation,
or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which
such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government
bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties
or for the payment of rent, in each case Incurred in the ordinary course of business;


 


(xiii)      
Liens on specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations
in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment
or storage of such inventory or other goods;


 


(xiv)      
leases and subleases of real property which do not materially interfere with the ordinary conduct of the business of the
Parent Guarantor or any of its Subsidiaries;


 


(xv)        
Liens securing cash management services (and other “bank products”) in the ordinary course of business;


 


 


 






    	 	25	 



     


    

 


(xvi)      
Liens on equipment of the Parent Guarantor or any Subsidiary of the Parent Guarantor granted in the ordinary course of business
to the Parent Guarantor’s or such Subsidiary’s client or supplier at which such equipment is located;


 


(xvii)    
Liens securing Indebtedness incurred pursuant to clause (1) of Section 10(a)(i) plus in the case of any such Indebtedness
that is amended, extended, renewed, restated, refunded, replaced, refinanced, supplemented, modified or otherwise changed which
is secured by a Lien permitted under this clause (xvii) or a portion thereof, the aggregate amount of fees, underwriting discounts,
accrued and unpaid interest, premiums and other costs and expenses incurred in connection with such amendment, extension, renewal,
restatement, refunding, replacement, refinancing, supplement, modification or change;


 


(xviii)   
Liens securing the Securities and the Guarantees;


 


(xix)      
Liens on accounts receivable and related assets of the type specified in the definition of “Receivables Financing”
Incurred in connection with a Qualified Receivables Financing;


 


(xx)        
(a) judgment and attachment Liens and Liens arising out of decrees, orders and awards, in each case, to the extent not giving
rise to an Event of Default and (b) notices of lis pendens and associated rights related to litigation being contested in
good faith by appropriate proceedings that have the effect of preventing the forfeiture or sale of the property or assets subject
to such notices and rights and for which adequate reserves have been made to the extent required by GAAP;


 


(xxi)      
Liens (i) on cash advances in favor of the seller of any property to be acquired in an Investment permitted pursuant to
Permitted Investments to be applied against the purchase price for such Investment, and (ii) consisting of an agreement to sell
any property in an asset sale permitted under this Note;


 


(xxii)    
Liens securing Indebtedness permitted under clause (22) of the definition of Permitted Debt; and


 


(xxiii)   
any extension, renewal, replacement, restructuring, refinancing or other modification of any Indebtedness secured by a Lien
permitted by any of the foregoing clauses (i) through (xxii).


 


(jjj)         
“Person” means an individual, a limited liability company, a partnership (limited or general), a
joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or agency
thereof.


 


(kkk)     
“Pledged Subsidiaries” means those certain Subsidiaries whose Equity Interests (as defined in the Security
Documents) are Pledged Shares (as defined in the Security Documents).


 


(lll)            
“Preferred Stock” means any Equity Interest with preferential right of payment of dividends or upon liquidation,
dissolution or winding up.


 


(mmm)  
“Principal Market” means The Nasdaq Global Select Market.


 


(nnn)     
“Purchase Money Note” means a promissory note of a Receivables Subsidiary evidencing a line of credit,
which may be irrevocable, from the Parent Guarantor or any Subsidiary of the Parent Guarantor to a Receivables Subsidiary in connection
with a Qualified Receivables Financing, which note is intended to finance that portion of the purchase price that is not paid by
cash or a contribution of equity.


 


(ooo)     
“Qualified Receivables Financing” means any Receivables Financing of a Receivables Subsidiary that meets
the following conditions:


 


 


 






    	 	26	 



     


    

 


(i)             
the Board shall have determined in good faith that such Qualified Receivables Financing (including financing terms, covenants,
termination events and other provisions) is in the aggregate economically fair and reasonable to the Parent Guarantor and the Receivables
Subsidiary,


 


(ii)           
all sales of accounts receivable and related assets to and by the Receivables Subsidiary are made at Fair Market Value,
and


 


(iii)         
the financing terms, covenants, termination events and other provisions thereof shall be market terms (as determined in
good faith by the Parent Guarantor) and may include Standard Securitization Undertakings.


 


(ppp)     
“Receivables Fees” means distributions or payments made directly or by means of discounts with respect
to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Subsidiary in connection
with, any Receivables Financing.


 


(qqq)     
“Receivables Financing” means any transaction or series of transactions pursuant to which the Parent
Guarantor or any of its Subsidiaries may sell, convey or otherwise transfer to a Person, or may grant a security interest in, any
accounts receivable (whether now existing or arising in the future) of the Parent Guarantor or any of its Subsidiaries, and any
assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees
or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and other assets which are customarily
transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions
involving accounts receivable and any Hedging Obligations pursuant to a Swap Contract entered into by the Parent Guarantor or any
such Subsidiary in connection with such accounts receivable.


 


(rrr)        
“Receivables Repurchase Obligation” means any obligation of a seller of receivables in a Qualified Receivables
Financing to repurchase receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including
as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, off-set or counterclaim of any
kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.


 


(sss)       
“Receivables Subsidiary” means a Wholly Owned Subsidiary of the Parent Guarantor (or other Person
formed for the purposes of engaging in a Qualified Receivables Financing with the Parent Guarantor or any of its Subsidiaries in
which the Parent Guarantor or such Subsidiary makes an Investment and to which the Parent Guarantor or such Subsidiary transfers
accounts receivable and related assets) which engages in no activities other than in connection with the Receivables Financing,
all proceeds thereof and all rights (contractual or other), collateral and other assets relating thereto, and any business or activities
incidental or related to such business and which is designated by the Board (as provided below) as a Receivables Subsidiary and:


 


(i)             
no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (x) is guaranteed by the Parent
Guarantor or any of its Subsidiaries (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness)
pursuant to Standard Securitization Undertakings), (y) is recourse to or obligates the Parent Guarantor or any of its Subsidiaries
(other than such Receivables Subsidiary) in any way other than pursuant to Standard Securitization Undertakings, or (z) subjects
any property or asset of the Parent Guarantor or any of its Subsidiaries, directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard Securitization Undertakings,


 


(ii)           
with which neither the Parent Guarantor nor any of its Subsidiaries has any material contract, agreement, arrangement or
understanding other than on terms which the Parent Guarantor reasonably believes to be no less favorable to the Parent Guarantor
or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Parent Guarantor or
such Subsidiary, and


 


(iii)         
to which neither the Parent Guarantor nor any of its Subsidiaries has any obligation to maintain or preserve such entity’s
financial condition or cause such entity to achieve certain levels of operating results.


 


 


 






    	 	27	 



     


    

 


(iv)          
Any such designation by the Board or such other Person shall be evidenced to the Holder by delivery to the Holder of a certified
copy of the resolution of the Board or such other Person giving effect to such designation and an Officer’s Certificate certifying
that such designation complied with the foregoing conditions.


 


(ttt)         
“Redemption Amount” means the sum of (A) the portion of the Principal to be redeemed or otherwise with
respect to which this determination is being made, (B) accrued and unpaid Interest with respect to such Principal and (C) accrued
and unpaid Late Charges, if any, with respect to such Principal and Interest.


 


(uuu)     
“Redemption Dates” means, collectively, each Event of Default Redemption Date and each Change of Control
Redemption Date, each of the foregoing, individually, a “Redemption Date”.


 


(vvv)     
“Redemption Notices” means, collectively, each Event of Default Redemption Notice and each Change of
Control Redemption Notice, each of the foregoing, individually, a “Redemption Notice”.


 


(www) “Redemption
Prices” means, collectively, each Event of Default Redemption Price and each Change of Control Redemption Price, each
of the foregoing, individually, a “Redemption Price”.


 


(xxx)     
“Registrable Securities” shall have the meaning ascribed to such term in the Registration Rights Agreement.


 


(yyy)     
“Registration Rights Agreement” means that certain registration rights agreement dated as of the Subscription
Date by and among the Parent Guarantor and the Buyers, as may be amended, amended and restated, supplemented or otherwise modified
from time to time.


 


(zzz)      
“Registration Statement” shall have the meaning ascribed to such term in the Registration Rights Agreement.


 


(aaaa)   
“Related Fund” means, with respect to any Person, a fund or account managed by such Person or an Affiliate
of such Person.


 


(bbbb)  
“Required Holders” means the holders of Notes and Additional Company Notes representing at least a majority
of the aggregate principal amount of the Notes and Additional Company Notes then outstanding and shall include the Designee so
long as the Designee and/or any of its Affiliates holds any Notes and/or Additional Company Notes.


 


(cccc)   
“Restricted Investment” means an Investment other than a Permitted Investment.


 


(dddd)  
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and any successor thereto.


 


(eeee)   
“SEC” means the United States Securities and Exchange Commission.


 


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


 


(gggg)  
“Securities Purchase Agreement” means that certain securities purchase agreement, dated as of the Subscription
Date, by and among the Parent Guarantor and the Buyers of the Notes pursuant to which the Parent Guarantor or the Company, as applicable,
issued the Notes, the Additional Securities and the Warrants, as may be amended, amended and restated, supplemented or otherwise
modified from time to time.


 


 


 






    	 	28	 



     


    

 


(hhhh)  
“Security Documents” shall have the meaning ascribed to such term in the Securities Purchase Agreement,
and shall include the New Pledge Agreement, the New Security Agreement and the Parent Guarantee, each as defined in the Exchange
Agreement.


 


(iiii)          
“Series A Preferred Shares” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(jjjj)          
“Series A Warrants” has the meaning ascribed to such term in the Securities Purchase Agreement, and shall
include all warrants issued in exchange therefor or replacement thereof.


 


(kkkk)    
“Series B Warrants” has the meaning ascribed to such term in the Securities Purchase Agreement, and shall
include all warrants issued in exchange therefor or replacement thereof.


 


(llll)       
“SPA Notes” means all Senior Secured Notes issued by the Parent Guarantor or any Subsidiary pursuant
to the Securities Purchase Agreement on an Additional Closing Date.


 


(mmmm)              
“Standard Securitization Undertakings” means representations, warranties, covenants, indemnities and
guarantees of performance entered into by the Parent Guarantor and its Subsidiaries which the Parent Guarantor has determined in
good faith to be customary in a Receivables Financing including, without limitation, those relating to the servicing of the assets
of a Receivables Subsidiary, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization
Undertaking.


 


(nnnn)  
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed
date on which the final payment of principal of such security is due and payable.


 


(oooo)  
“Stated Value” shall have the meaning ascribed to such term in the Certificate of Designations.


 


(pppp)    
“Stockholders Notes” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(qqqq)  
“Subject Entity” means any Person, Persons or Group or any Affiliate or associate of any such Person,
Persons or Group.


 


(rrrr)         
“Subordinated Indebtedness” means (a) with respect to the Parent Guarantor, any Indebtedness of the Parent
Guarantor which is by its terms subordinated in right of payment to the Notes, the Additional Notes and the Parent Guarantee, and
(b) with respect to any Guarantor other than the Parent Guarantor, any Indebtedness of such Guarantor which is by its terms subordinated
in right of payment to its Guarantee.


 


(ssss)     
“Subscription Date” means November 18, 2019.


 


(tttt)       
“Subsidiary” shall have the meaning ascribed to such term in the Securities Purchase Agreement. Unless
otherwise indicated herein, all references to Subsidiaries shall mean Subsidiaries of the Parent Guarantor.


 


(uuuu)    
“Successor Entity” means one or more Person or Persons (or, if so elected by the Required Holders, the
Parent Guarantor or Parent Entity) formed by, resulting from or surviving any Fundamental Transaction or one or more Person or
Persons (or, if so elected by the Required Holders, the Parent Guarantor or the Parent Entity) with which such Fundamental Transaction
shall have been entered into.


 


(vvvv)  
“Supplemental Agreement” means that certain Supplemental Agreement dated as of June 4, 2020 by and between
the Parent Guarantor and the Designee.


 


 


 






    	 	29	 



     


    

 


(wwww)                
“Swap Contracts” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions,
forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions,
cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of
any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed
by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities
under any Master Agreement.


 


(xxxx)  
 “Total Assets” means at any date, the total assets of the Parent Guarantor and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP, excluding any assets that do not constitute Collateral.


 


(yyyy)    
“Trading Day” means any day on which the Common Stock is traded on the Principal Market, or, if the Principal
Market is not the principal trading market for the Common Stock on such day, then on the principal securities exchange or securities
market on which the Common Stock is then traded; provided that “Trading Day” shall not include any day on which
the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or any day that the Common Stock is suspended
from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance
the closing time of trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York time).


 


(zzzz)             
“Transaction Documents” shall have the meaning ascribed to such term in the Securities Purchase Agreement.


 


(aaaaa)             
“Transfer Agent” means Computershare Trust Company, N.A. or such other agent or agents of the Parent
Guarantor as may be designated by the Board as the transfer agent for the Common Stock.


 


(bbbbb)           
“Treasury Rate” means the yield to maturity at the time of computation of United States Treasury securities
with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) which has
become publicly available at least two (2) Business Days prior to the date fixed for redemption (or, if such Statistical Release
is no longer published, any publicly available source for similar market data)) most nearly equal to the then remaining term of
the Notes to the Maturity Date; provided, however, that if the then remaining term of the Notes to the Maturity Date
is not equal to the constant maturity of a United States Treasury security for which a weekly average yield is given, the Treasury
Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields
of United States Treasury securities for which such yields are given, except that, if the then remaining term of the Notes to the
Maturity Date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to
a constant maturity of one year shall be used.


 


(ccccc)     
“Warrants” has the meaning ascribed to such term in the Securities Purchase Agreement, and shall include
all warrants issued in exchange therefor or replacement thereof.


 


(ddddd)      
“Weighted Average Life to Maturity” means, when applied to any Indebtedness or Disqualified Stock, as
the case may be, at any date, the quotient obtained by dividing (1) the sum of the products of the number of years from the date
of determination to the date of each successive scheduled principal payment of such Indebtedness or redemption or similar payment
with respect to such Disqualified Stock multiplied by the amount of such payment, by (2) the sum of all such payments.


 


(eeeee) “Wholly
Owned Subsidiary” means, with respect to any Person, a Subsidiary of such Person 100% of the outstanding Capital Stock
or other ownership interests of which (other than directors’ qualifying shares or shares or interests required to be held
by foreign nationals or other third parties to the extent required by applicable law) shall at the time be owned by such Person
or by one or more Wholly Owned Subsidiaries of such Person and one or more Wholly Owned Subsidiaries of such Person.


 


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IN WITNESS WHEREOF, the
Company and the Parent Guarantor have caused this Note to be duly executed as of the Issuance Date set out above.


 


 


	Merton Acquisition HoldCo LLC
	 
	By:_________________________________
	Name:
	Title:


 


 


	Acacia Research Corporation
	 
	By:_________________________________
	Name:
	Title:


 


 


 


 






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