ex104-phunware2020invest






                                                                    EXECUTION COPY                                   NOTE PURCHASE AGREEMENT                  NOTE PURCHASE AGREEMENT (the “Agreement”), dated as of July 14, 2020, by           and  among Phunware,  Inc.,  a  Delaware  corporation  with  offices  located  at  7800  Shoal  Creek           Blvd, Suite 230-S, Austin, Texas 78757 (the “Company”) and the investor signatory hereto (the           “Investor”).                  WHEREAS:                  A.    Concurrently  herewith,  the  Company and the  Investor  have  entered  into  that           certain  Securities  Purchase  Agreement,  dated July 14,  2020,  pursuant  to  which,  among  other           things, the Investor shall acquire a senior secured convertible note (the “Series B Note”) of the           Company (the “Securities Purchase Agreement”).  Capitalized terms not defined herein shall           have the meaning as set forth in the Securities Purchase Agreement.                  B.    The  Company  and  the  Investor are executing  and  delivering  this  Agreement  in           reliance  upon  the  exemption  from  securities  registration  afforded  by  Section  4(a)(2)  of  the           Securities  Act  of  1933,  as  amended  (the  “1933  Act”),  as  promulgated  by  the  United  States           Securities and Exchange Commission (the “SEC”) under the 1933 Act.                  C.    The  Investor has  authorized the issuance of a new secured promissory  Investor           Note in substantially the form attached hereto as Exhibit A, pursuant to the terms set forth herein           (collectively, the “Investor Note”).                  D.    The Investor wishes to purchase the Series B Note from the Company pursuant to           the  Securities  Purchase  Agreement  and  to  issue  the  Investor  Note  in  full  satisfaction  of  the           purchase price of the Series B Note (the “Series B Purchase Price”), and the Company wishes           to (x) sell the Series B Note to the Investor, (y) acquire the Investor Note in full satisfaction of           the Series B Purchase Price and (z) pledge the Investor Note to the Investor as collateral for its           obligations under the Series B Note.                  E.    The  Investor  Note  will be  secured  by  a  first  priority  security  interest  in  certain           Eligible  Assets  (as  defined  in  the  Investor  Note)  (collectively,  the  “Collateral”)  held  in  the           collateral account of the Investor described in the Investor Note (the “Collateral Account”).                  F.    Concurrently herewith,  each of the Company and the  Investor are entering into           that certain Master Netting Agreement, in substantially the form attached hereto as Exhibit B           (the  “Master  Netting  Agreement”), to  provide further  clarification  of the  parties’ rights (but           not, in the case of Investor only, its obligation) to Net (as defined below) certain Obligations (as           defined in the Netting Agreement) arising under and across this Agreement, the Investor Note,           the  Series  B  Notes  and  the  Securities  Purchase  Agreement (collectively,  the  “Underlying           Agreements”)  and  to  treat the  Master  Netting  Agreement, this  Agreement  and  the other           Underlying  Agreements  as  a  single  agreement  for  the  purposes  set  forth  herein  and this           Agreement and the Securities Purchase Agreement each as a “securities contract” (11 U.S.C. §           741), or other similar agreements.                  NOW, THEREFORE, the Company and the Investor hereby agree as follows:    Error! Unknown document property name. 





 






                           1.    PURCHASE AND SALE OF INVESTOR NOTE.                        (a)   Investor Note.  Subject to the satisfaction (or waiver) of the conditions set           forth in Sections 5 and 6 below, the Investor agrees to issue and sell to the Company, and the           Company  agrees  to  purchase  from  the  Investor  on  the  Closing  Date  (as  defined  below),  such           aggregate principal amount of Investor Note as is set forth on the signature page of the Investor           attached hereto in full satisfaction of the Series B Purchase Price under the Securities Purchase           Agreement (the “Closing”).                        (b)   Closing.   The  Closing  of  the  purchase  of  the  Investor  Note  by  the           Company shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York,           NY  10178.  The  date  and  time  of  the  Closing  (the  “Closing  Date”)  shall  be  10:00  a.m.,  New           York time, on the first (1st) Business Day on which the conditions to the Closing set forth in           Sections 5 and 6 below are satisfied or waived (or such other date or time as is mutually agreed           to by the Company and the Investor).  As used herein “Business Day” means any day other than           Saturday, Sunday or other day on which commercial banks in The City of New York, New York           are  authorized  or  required  by  law  to  remain  closed; provided, however,  for  clarification,           commercial banks shall not be deemed to be authorized or required by law to remain closed due           to “stay at home”, “shelter-in-place”, “non-essential employee”  or any other similar orders or           restrictions or the closure of any physical branch locations at the direction of any governmental           authority  so  long  as  the  electronic  funds  transfer  systems  (including  for  wire  transfers)  of           commercial banks in The City of New York, New York generally are open for use by customers           on such day.                        (c)   Delivery  of  Investor  Note  in  Satisfaction  of  Series  B  Purchase  Price;           Securities Contract; Netting Safe Harbor.  On the Closing Date, the Investor shall duly execute           the  Investor  Note, registered in  the name of the Company, in  full  satisfaction of the Series  B           Purchase  Price  pursuant  to  the  Securities  Purchase  Agreement, and, in  accordance  with  the           instructions of the Company in the Flow of Funds Letter (as defined in the Securities Purchase           Agreement), the Investor shall maintain physical possession of the Investor Note as Collateral (as           defined  in the Series  B  Note) securing the Series  B  Note.  For  the  avoidance  of  doubt,  the           Investor  Note  is  deemed  simultaneously  delivered  (x)  by  the  Investor  to  the  Company  at  the           Closing hereunder and (y) delivered by the Company to the Investor at the Closing (as defined in           the Securities Purchase Agreement) under the Securities Purchase Agreement, as Collateral for           the Series B Note purchased by the Investor thereunder.  Other than the issuance of the Series B           Note to the Investor pursuant to the Securities Purchase Agreement, the Company shall not be           required to pay any additional consideration for the issuance of the Investor Note hereunder.  The           Company hereby acknowledges and agrees that the rights and obligations of the Investor under           the Master Netting Agreement, hereunder and under the other Underlying Agreements and the           rights  and  obligations  of  the  Company under  the  Master  Netting  Agreement, hereunder and           under  the  other  Underlying  Agreements arise  in  a  single  integrated  transaction  and  constitute           related and interdependent obligations within such transaction.  The Company and the Investor           hereby acknowledge and agree that this Agreement and the Securities Purchase Agreement each           is a “securities contract” as defined in 11 U.S.C. § 741 and that Investor shall have all rights in           respect of the Master Netting Agreement, this Agreement and the other Underlying Agreements           as are set forth in 11 U.S.C. § 555 and 11 U.S.C. § 362(b)(6), including, without limitation, all           rights of credit, deduction, setoff, offset, recoupment, and netting (collectively, “Netting”) as are                                                 - 2 -  Error! Unknown document property name. 





 






                     available  under  the  Master  Netting  Agreement,  this  Agreement and  the  other  Underlying           Agreements, and all Netting provisions of the Series B Note, the Master Netting Agreement and           the  Investor  Note,  including  without  limitation  the  provisions  set  forth  in  Section  7  of  the           Investor  Note,  are  hereby  incorporated  in  this  Agreement  and  made  a  part  hereof  as  if  such           provisions were set forth herein.                  2.    COMPANY’S REPRESENTATIONS AND WARRANTIES.                        The Company represents and warrants, as of the date hereof and as of the Closing           Date in which the Company is purchasing the Investor Note hereunder, that:                         (a)   Organization  and  Qualification.   Each  of  the  Company  and  each  of  its           Subsidiaries are entities duly organized and validly existing and in good standing under the laws           of the jurisdiction in which they are formed, and have the requisite power and authority to own           their properties and to carry on their business as now being conducted and as presently proposed           to be conducted.  Each of the Company and each of its Subsidiaries is duly qualified as a foreign           entity  to  do  business  and  is  in  good  standing  in  every jurisdiction  in  which  its  ownership  of           property or the nature of the business conducted by it makes such qualification necessary, except           to the extent that the failure to be so qualified or be in good standing would not reasonably be           expected to have a Material Adverse Effect.                        (b)   Authorization;  Enforcement;  Validity.   The  Company  has  the  requisite           power and authority to enter into and perform its obligations under this Agreement and the other           Transaction Documents, to  issue  the  Securities  in  accordance  with  the  terms thereof  and to           acquire the Investor Note in accordance with the terms hereof.  The execution and delivery of           this Agreement and the other Transaction Documents by the Company, and the consummation           by the Company of the transactions contemplated hereby and thereby have been duly authorized           by  the  Company’s  board  of  directors  and  (other  than  the  filing  with  the  SEC  of  one  or  more           Registration  Statements  in  accordance  with  the  requirements  of  the  Registration  Rights           Agreement,  a  Form  D  with  the  SEC  and  any  other  filings  as  may  be  required  by  any  state           securities  agencies)  no  further  filing,  consent  or  authorization  is  required  by  the  Company,  it           board of directors or stockholders or other governing body.  This Agreement has been, and the           other Transaction Documents to which it is a party will be prior to the Closing, duly executed           and delivered by the Company, and each constitutes the legal, valid and binding obligations of           the Company, enforceable against the Company in accordance with its respective terms, except           as such enforceability may be limited by general principles of equity or applicable bankruptcy,           insolvency,  reorganization,  moratorium,  liquidation  or  similar  laws  relating  to,  or  affecting           generally, the enforcement of applicable creditors’ rights and remedies and except as rights to           indemnification and to contribution may be limited by federal or state securities law.                        (c)   No Conflicts.  The execution, delivery and performance of the Transaction           Documents by the Company and its Subsidiaries and the consummation by the Company and its           Subsidiaries of the transactions contemplated hereby and thereby will not (i) result in a violation           of the Certificate of Incorporation (including, without limitation, any certificate of designation           contained  therein), Bylaws,  certificate  of  formation,  memorandum  of  association,  articles  of           association, bylaws or other organizational documents of the Company or any of its Subsidiaries,           or any capital stock or other securities of the Company or any of its Subsidiaries, (ii) conflict                                                  - 3 -  Error! Unknown document property name. 





 






                     with,  or  constitute  a  default  (or  an  event  which  with  notice  or  lapse  of  time  or  both  would           become a default) in any respect under, or give to others any rights of termination, amendment,           acceleration or cancellation of, any agreement, indenture or instrument to which the Company or           any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order,           judgment or decree (including, without limitation, foreign, federal and state securities laws and           regulations  and  the  rules  and  regulations  of  the Principal  Market and  including  all  applicable           foreign, federal and state laws, rules and regulations) applicable to the Company or any of its           Subsidiaries  or by  which  any  property  or  asset  of  the  Company or  any  of  its  Subsidiaries is           bound  or  affected, and,  solely  with  respect  to  clauses  (ii)  and  (iii),  which  violation,  conflict,           breach or default, individually or in the aggregate, would have a Material Adverse Effect.                        (d)   Consents.  Neither the Company nor any Subsidiary is required to obtain           any consent from, authorization or order of, or make any filing or registration with (other than           the  filing  with  the  SEC  of  one  or  more  Registration  Statements  in  accordance  with  the           requirements of the Registration Rights Agreement, a Form D with the SEC and any other filings           as may be required by any state securities agencies), any Governmental Entity (as defined below)           or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver           or  perform  any  of  its  respective  obligations  under  or  contemplated  by  the  Transaction           Documents,  in  each  case,  in  accordance  with  the  terms  hereof  or  thereof.   All  consents,           authorizations, orders, filings and registrations which the Company or any Subsidiary is required           to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior           to the Closing Date, and the Company is not aware of any facts or circumstances which might           prevent the Company from obtaining or effecting any of the registration, application or filings           contemplated  by  the  Transaction  Documents.   The  Company  is  not  in  violation  of  the           requirements of the Principal Market and has no knowledge of any facts or circumstances which           could reasonably lead to delisting or suspension of the Common Stock in the foreseeable future.                        (e)   No Sale or Distribution.  The Company is acquiring the Investor Note for           its own account and not with a view towards, or for resale in connection with, the public sale or           distribution  thereof.  The  Company  does  not presently  have  any  agreement  or  understanding,           directly  or  indirectly,  with  any  Person  (as  defined  in  the  Securities  Purchase  Agreement)  to           distribute any of the Investor Note.                        (f)   Sophisticated  Investor.  The  Company  is  a  sophisticated  investor  (as           described  in  Rule  506(b)(2)(ii)  of  Regulation  D),  and  has  such  knowledge  and  experience  in           business  and  financial  matters  that  it  is  capable  of  evaluating  the  merits  and  risks  of  an           investment in the Investor Note.                        (g)   Reliance  on  Exemptions.   The  Company  understands  that  the  Investor           Note  is  being  offered  and  sold  to  it  in  reliance  on  specific  exemptions  from  the  registration           requirements of United States federal and state securities laws and that the Investor is relying in           part upon the truth and accuracy of, and the Company’s compliance with, the representations,           warranties, agreements, acknowledgments and understandings of the Company set forth herein in           order  to  determine  the  availability  of  such  exemptions  and  the  eligibility  of  the  Company  to           acquire the Investor Note.                                                  - 4 -  Error! Unknown document property name. 





 






                                 (h)   Information.  The Company and its advisors, if any, have been furnished           with all materials relating to the business, finances and operations of the Investor and materials           relating to the offer and sale of the Investor Note that have been requested by the Company.  The           Company  and  its  advisors,  if  any,  have  been  afforded  the  opportunity  to  ask  questions  of  the           Investor.   Neither  such  inquiries  nor  any  other  due  diligence  investigations  conducted  by  the           Company  or  its  advisors,  if  any, or  its  representatives  shall  modify,  amend  or  affect  the           Company’s right to rely on the Investor’s representations and warranties contained herein.  The           Company  understands  that  its  investment  in  the Investor  Note  involves  a  high  degree  of  risk.            The Company has sought such accounting, legal and tax advice as it has considered necessary to           make an informed investment decision with respect to its acquisition of the Investor Note.                        (i)   No  Governmental  Review.   The  Company  understands  that  no  United           States federal or state agency or any other government or governmental agency has passed on or           made any recommendation or endorsement of the Investor Note or the fairness or suitability of           the investment in the Investor Note nor have such authorities passed upon or endorsed the merits           of the offering of the Investor Note.                        (j)   Transfer or Resale.  The Company understands that: (i) the Investor Note           has not been and is not being registered under the 1933 Act or any state securities laws, and may           not be offered for sale, sold, assigned or transferred without the consent of the Investor (and any           Prohibited Transfer (as defined in the Investor Note) shall be subject to certain recoupment rights           and netting against the Series B Note to be issued to the Investor concurrently with the Closing           hereunder) and (ii) neither the Investor nor any other Person is under any obligation to register           the Investor Note under the 1933 Act or any state securities laws or to comply with the terms and           conditions of any exemption thereunder.                        (k)   Legends.  The  Company  understands  that  the  certificates  or  other           instruments representing the Investor Note shall bear any legend as required by the “blue sky”           laws of any state and a restrictive legend in substantially the following form (and a stop-transfer           order may be placed against transfer of such stock certificates):                  THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT                 OF  1933,  AS  AMENDED  (THE  “ACT”),  OR  THE  APPLICABLE  STATE                 SECURITIES  LAWS,  AND  MAY  NOT  BE  OFFERED  OR  SOLD  IN  THE                 ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE                 ACT AND SUCH STATE SECURITIES LAWS, OR AN EXEMPTION FROM                 REGISTRATION  THEREUNDER,  IN  EACH  CASE,  TO  THE  EXTENT                 APPLICABLE HERETO.                  3.    REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.                        The Investor represents and warrants to the Company as of the date hereof and as           of the Closing Date as follows:                        (a)   Authorization;  Enforcement;  Validity.   The  Investor  has  the  requisite           corporate power and authority to enter into and perform its obligations under this Agreement and           the  Investor  Note  and  each  of  the  other  agreements  entered  into  by  the  parties  hereto  in                                                  - 5 -  Error! Unknown document property name. 





 






                     connection  with  the  transactions  contemplated  by  this  Agreement  (collectively,  the           “Transaction Documents”) and to issue the Investor Note in accordance with the terms hereof           and thereof.  The execution and delivery of the Transaction Documents by the Investor and the           consummation by the Investor of the transactions contemplated hereby and thereby, including,           without limitation, the issuance of the Investor Note has been duly authorized by the Investor’s           board of directors, investment manager or other governing body and no further filing, consent, or           authorization is required by the Investor.  This Agreement and the other Transaction Documents           have  been  duly  executed  and  delivered  by  the  Investor,  and  constitute  the  legal,  valid  and           binding  obligations  of  the  Investor,  enforceable  against  the  Investor  in  accordance  with  their           respective terms, except as such enforceability may be limited by general principles of equity or           applicable  bankruptcy, insolvency,  reorganization,  moratorium,  liquidation  or  similar  laws           relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.                        (b)   Issuance  of  Investor  Note.   The  issuance  of  the  Investor  Note  is  duly           authorized and upon issuance in accordance with the terms of the Transaction Documents shall           be free from all taxes, liens and charges with respect to the issue thereof.  Assuming the accuracy           of each of the representations and warranties set forth in Section 2 of this Agreement, the offer           and issuance by the Investor of the Investor Note is exempt from registration under the 1933 Act.                        (c)   No Conflicts.  The execution, delivery and performance of the Transaction           Documents  by  the  Investor  and  the  consummation  by  the  Investor  of  the  transactions           contemplated  hereby  and thereby  (including,  without  limitation,  the  issuance  of  the  Investor           Note) will not (i) result in a violation of the Investor’s organizational documents or (ii) conflict           with,  or  constitute  a  default  (or  an  event  which  with  notice  or  lapse  of  time  or  both  would           become a default) in any respect under, or give to others any rights of termination, amendment,           acceleration or cancellation of, any agreement, indenture or instrument to which the Investor is a           party,  or  (iii) result  in  a  violation  of  any  law,  rule,  regulation,  order,  judgment  or  decree           (including foreign, federal and state securities laws and regulations) applicable to the Investor or           by which any property or asset of the Investor is bound or affected, except, in the case of clause           (ii) and (iii) above, for such violations, conflicts, breaches, defaults, losses, terminations of rights           thereof, or accelerations  which, in  the aggregate, would not  reasonably  be expected to  have  a           Material  Adverse  Effect  (as  defined  below).   “Material  Adverse  Effect”  means  any  material           adverse  effect  on  (i)  the  business,  properties,  assets,  liabilities,  operations  (including  results           thereof) or condition (financial or otherwise) of the Investor, (ii) the transactions contemplated           hereby  or  in  any  of  the  other  Transaction  Documents  or  (iii)  the  authority  or  ability  of  the           Investor to perform any of its obligations under any of the Transaction Documents.                        (d)   Consents.  The  Investor  is  not  required  to  obtain  any  consent,           authorization  or  order  of,  or  make  any  filing  or  registration  with,  any  government,  court,           regulatory, self-regulatory, administrative agency or commission or other governmental agency,           authority or instrumentality, domestic or foreign, of competent jurisdiction (a “Governmental           Authority”)  or  any  other  Person  in  order  for  it  to  execute,  deliver  or  perform  any  of  its           obligations  under  or  contemplated  by  the  Transaction  Documents,  in  each  case  in  accordance           with  the  terms  hereof  or  thereof.   The  Investor  is unaware  of  any  facts  or  circumstances  that           might  prevent  the  Investor  from  obtaining  or  effecting  any  of  the  registration,  application  or           filings pursuant to the preceding sentence.                                                  - 6 -  Error! Unknown document property name. 





 






                                 (e)   No  General  Solicitation.   The  Investor  has  not  engaged  in  any  form  of           general solicitation or general advertising (within the meaning of Regulation D) in connection           with the offer or sale of the Investor Note.                        (f)   No Integrated Offering.  Neither the Investor nor any Person acting on its           behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers           to buy any security, under circumstances that would require registration of the issuance of the           Investor Note under the 1933 Act, whether through integration with prior offerings or otherwise.            Neither the Investor nor any Person acting on their behalf will take any action or steps referred to           in the preceding sentence that would require registration of the issuance of any of the Investor           Note under the 1933 Act.                        (g)   Sufficient  Collateral.  As of the Closing Date the accounts described on           Schedule  I  to  the  Investor  Note,  which  Collateral  secures  the  Investor  Note  in  accordance           therewith, contains at least the Series B Purchase Price of Eligible Assets as of the Closing Date.                        (h)   Full  Recourse.   The  Investor  Note  is  a  full  recourse  obligation  of  the           Investor.                  4.    COVENANTS.                        (a)   Reasonable Best Efforts.  Each party shall use its reasonable best efforts           timely to satisfy each of the conditions to be satisfied by it as provided in Sections 5 and 6 of this           Agreement.                        (b)   Fees.  The  Company  shall  be  responsible  for  the  payment  of  any           placement agent’s fees, financial advisory fees, legal expenses or broker’s commissions relating           to or arising out of the transactions contemplated hereby.  The Company shall pay, and hold the           Investor harmless against, any liability, loss or expense (including, without limitation, reasonable           attorney’s fees and out-of-pocket expenses) arising in connection with any claim relating to any           such  payment.   Except  as  otherwise  set  forth  in  the  Transaction  Documents  or  the  Securities           Purchase  Agreement,  each  party  to  this  Agreement  shall  bear  its  own  expenses  in  connection           with the sale of the Investor Note to the Company.                        (c)   Taxes.  The Company will pay, and save and hold the Investor harmless           from any and all liabilities (including interest and penalties) with respect to, or resulting from           any delay or failure in paying, stamp and other taxes (other than income taxes), if any, which           may be payable or determined to be payable on the execution and delivery or acquisition of the           Investor Note.                                                  - 7 -  Error! Unknown document property name. 





 






                           5.    CONDITIONS  TO  THE  INVESTOR’S  OBLIGATION  TO  SELL.  The           obligation of the Investor hereunder to issue and sell the Investor Note to the Company at the           Closing  is  subject  to  the  satisfaction,  at  or  before  the  Closing  Date,  of  each  of  the  following           conditions, provided that these conditions are for the Investor’s sole benefit and may be waived           by the Investor at any time in its sole discretion by providing the Company with prior written           notice thereof:                        (a)   The Company shall have executed each of the Transaction Documents to           which it is a party and delivered the same to the Investor.                        (b)   All  conditions  to  the  Investor’s closing of the transactions  contemplated           by  the  Securities  Purchase  Agreement  shall  have  been  satisfied  (except  for  such  conditions           waived by the Investor) and the Investor Note is being issued hereunder in full satisfaction of the           Series B Purchase Price.                        (c)   The  representations  and  warranties  of  the  Company  shall  be  true  and           correct in all material respects as of the date when made and as of the Closing Date as though           made  at  that  time  (except  for  representations  and  warranties  that  speak  as  of  a  specific  date,           which  shall  be  true  and  correct  as  of  such  specified  date),  and  the  Company  shall  have           performed, satisfied and complied in  all material  respects  with  the  covenants,  agreements  and           conditions  required  by  this  Agreement  to  be  performed,  satisfied  or  complied  with  by  the           Company at or prior to the Closing Date.                  6.    CONDITIONS  TO  THE  COMPANY’S  OBLIGATION  TO  PURCHASE.             The  obligation  of  the  Company  hereunder  to  purchase  the  Investor  Note at  the  Closing  in           satisfaction, in full, of the Series B Purchase Price is subject to the satisfaction, at or before the           Closing  Date,  of  each  of  the  following  conditions,  provided  that  these conditions  are  for  the           Company’s sole benefit and may be waived by the Company at any time in its sole discretion by           providing the Investor with prior written notice thereof:                        (a)   The Investor shall have (A) duly executed and delivered to the Company           each of the Transaction Documents and (B) duly executed the Investor Note.                        (b)   All conditions to the Company’s closing of the transactions contemplated           by  the  Securities  Purchase  Agreement  shall  have  been  satisfied  (except  for  such  conditions           waived by the Company) and the Investor Note is being issued hereunder in full satisfaction of           the Series B Purchase Price.                        (c)   The representations and warranties of the Investor shall be true and correct           in all material respects as of the date when made and as of the Closing Date as though made at           that time (except for representations and warranties that speak as of a specific date, which shall           be true and correct as of such specified date), and the Investor shall have performed, satisfied and           complied in all material respects with the covenants, agreements and conditions required by this           Agreement to be performed, satisfied or complied with by the Investor at or prior to the Closing           Date.                        (d)   The  Investor  shall  have  obtained  all  governmental,  regulatory  or  third           party consents and approvals, if any, necessary for the sale of the Investor Note.                                                 - 8 -  Error! Unknown document property name. 





 






                           7.    TERMINATION.                          In the event that the Closing shall not have occurred on or prior to the termination           of the Securities Purchase Agreement, this Agreement shall automatically terminate.                            8.    MISCELLANEOUS.                        (a)   Governing  Law;  Jurisdiction;  Jury  Trial.  All  questions  concerning  the           construction, validity, enforcement and interpretation of this Agreement shall be governed by the           internal laws of the State of New York, without giving effect to any choice of law or conflict of           law provision or rule (whether of the State of New York or any other jurisdictions) that would           cause the application of the laws of any jurisdictions other than the State of New York. Each           party  hereby  irrevocably  submits  to  the  exclusive  jurisdiction  of  the  state  and  federal  courts           sitting  in  The  City  of  New  York,  Borough  of  Manhattan,  for  the  adjudication  of  any  dispute           hereunder or in connection herewith or with any transaction contemplated hereby or discussed           herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding,           any claim that it is not  personally subject to the jurisdiction of any such court, that such suit,           action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or           proceeding is improper. Each party hereby irrevocably waives personal service of process and           consents to process being served in any such suit, action or proceeding by mailing a copy thereof           to  such  party  at  the  address  for  such  notices  to  it  under this  Agreement  and  agrees  that  such           service  shall  constitute  good  and  sufficient  service  of  process  and  notice  thereof.   Nothing           contained herein shall be deemed to limit in any way any right to serve process in any manner           permitted  by  law.   EACH  PARTY  HEREBY  IRREVOCABLY  WAIVES  ANY  RIGHT  IT           MAY  HAVE  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  AGREEMENT  OR  ANY  TRANSACTION  CONTEMPLATED           HEREBY.                         (b)   Counterparts. This Agreement may be executed in two or more identical           counterparts,  all  of  which  shall  be  considered  one  and  the  same  agreement  and  shall  become           effective when counterparts have been signed by each party and delivered to the other party. In           the event that any signature is delivered by facsimile transmission or by an e-mail which contains           a portable document format (.pdf) file of an executed signature page, such signature page shall           create a valid and binding obligation of the party executing (or on whose behalf such signature is           executed) with the same force and effect as if such signature page were an original thereof.                         (c)   Headings; Gender. The headings of this Agreement are for convenience of           reference and shall not form part of, or affect the interpretation of, this Agreement. Unless the           context  clearly  indicates  otherwise,  each  pronoun  herein  shall  be  deemed  to  include  the           masculine,  feminine,  neuter,  singular  and  plural  forms  thereof.  The  terms  “including,”           “includes,” “include” and words of like import shall be construed broadly as if followed by the           words “without limitation.”  The terms “herein,” “hereunder,” “hereof” and words of like import           refer to this entire Agreement instead of just the provision in which they are found.                         (d)   Severability.   If  any  provision  of  this  Agreement  shall  be  invalid  or           unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity                                                  - 9 -  Error! Unknown document property name. 





 






                     or  enforceability  of  the  remainder  of  this  Agreement  in  that  jurisdiction  or  the  validity  or           enforceability of any provision of this Agreement in any other jurisdiction.                         (e)   Entire Agreement; Amendments. This Agreement, the Securities Purchase           Agreement, the other Transaction Documents (as defined herein) and the Transaction Documents           (as defined in the Securities Purchase Agreement) and the schedules and exhibits attached hereto           and thereto and the instruments referenced herein and therein supersede all other prior oral or           written  agreements  between  the  Investors,  the  Company,  its  Subsidiaries,  their  affiliates  and           Persons acting on their behalf solely with respect to the matters contained herein and therein, and           this  Agreement,  the  other  Transaction  Documents  (as  defined  herein)  and  the  Transaction           Documents  (as  defined  in  the  Securities  Purchase  Agreement),  the  schedules  and  exhibits           attached hereto and thereto and the instruments referenced herein and therein contain the entire           understanding  of  the  parties  solely  with  respect  to  the  matters  covered  herein  and  therein;           provided, however, nothing contained in this Agreement or any other Transaction Document or           the Transaction Documents (as defined in the Securities Purchase Agreement) shall (or shall be           deemed to) (i) have any effect on any agreements the Investor has entered into with the Company           or any of its Subsidiaries prior to the date hereof with respect to any prior investment made by           the Investor in the Company or (ii) waive, alter, modify or amend in any respect any obligations           of the Company or any of its Subsidiaries, or any rights of or benefits to the Investor or any other           Person, in any agreement entered into prior to the date hereof between or among the Company           and/or any of its Subsidiaries and the Investor and all such agreements shall continue in full force           and  effect.  Except  as  specifically  set  forth  herein  or  therein,  neither  the  Company  nor  the           Investor  makes  any  representation,  warranty,  covenant  or  undertaking  with  respect  to  such           matters. For clarification purposes, the Recitals are part of this Agreement.  No provision of this           Agreement  may  be  amended  or  waived  other  than  by  an  instrument  in  writing  signed  by  the           Company and the Investor.                         (f)   Notices.  Any notices, consents, waivers or other communications required           or permitted to be given under the terms of this Agreement shall be governed by the provisions           of Section 9(f) of the Securities Purchase Agreement.                         (g)   Successors and Assigns.  This Agreement shall be binding upon and inure           to the benefit of the parties and their respective successors and assigns. No party may assign this           Agreement or any rights or obligations hereunder without the prior written consent of the other           party.                         (h)   No Third Party Beneficiaries.  This Agreement is intended for the benefit           of  the  parties  hereto  and  their  respective  permitted  successors  and  assigns,  and  is  not  for  the           benefit of, nor may any provision hereof be enforced by, any other Person.                         (i)   Survival.  The representations, warranties, agreements and covenants shall           survive  each  Closing.  The  Investor  shall  be  responsible  only  for  its  own  representations,           warranties, agreements and covenants hereunder.                         (j)   Further Assurances.  Each party shall do and perform, or cause to be done           and  performed,  all  such  further  acts  and  things,  and  shall  execute  and  deliver  all  such  other           agreements, certificates, instruments and documents, as any other party may reasonably request                                                 - 10 -  Error! Unknown document property name. 





 






                     in  order  to  carry  out  the  intent  and  accomplish  the  purposes  of  this  Agreement  and  the           consummation of the transactions contemplated hereby.                         (k)   Construction.  The language used in this Agreement will be deemed to be           the  language  chosen  by  the  parties  to  express  their  mutual  intent,  and  no  rules  of  strict           construction will be applied against any party.                                         [Signature Page Follows]                                                 - 11 -  Error! Unknown document property name. 





 






                                      IN WITNESS WHEREOF, the Investor and the Company have caused their respective           signature page to this Note Purchase Agreement to be duly executed as of the date first written           above.                                                            COMPANY:                                                                                              PHUNWARE, INC.                                                 By:                                                                                 Name:                                                     Title:                                                                   Error! Unknown document property name. 





 






                           IN WITNESS WHEREOF, the Investor and the Company have caused their respective           signature page to this Note Purchase Agreement to be duly executed as of the date first written           above.                                                            INVESTORS:                                                                                              ALTO OPPORTUNITY MASTER FUND, SPC -                                               SEGREGATED MASTER PORTFOLIO B                                                                                                By:                                                                                 Name:                                                    Title:                                                 Aggregate  Principal  Amount  of  Investor  Note:                                                                                                                                             __________________________________                 Error! Unknown document property name.