Exhibit 3.1

CERTIFICATE OF DESIGNATIONS,

PREFERENCES AND RIGHTS

OF

SERIES C CONVERTIBLE PREFERRED SHARES OF

FUNCTIONAL BRANDS INC.

The undersigned, being the Chief Executive Officer of Functional Brands Inc., a Delaware corporation (the “Corporation” or “Company”), in accordance with the provisions of the Delaware General Corporation Law, does hereby certify that, pursuant to the authority conferred upon the Board of Directors (the “Board”) of the Corporation by the Certificate of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), the following resolutions creating a series of Series C Convertible Preferred Shares, was duly adopted on March 9, 2026:

RESOLVED, that pursuant to the authority expressly granted to and vested in the Board by provisions of the Certificate of Incorporation, there hereby is created out of the shares of preferred stock of the Corporation, par value $0.001 per share, as authorized in the Certificate of Incorporation, a series of preferred stock of the Corporation, to be named “Series C Convertible Preferred Shares” consisting of up to 6,100 shares (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization of the Series C Convertible Preferred Shares).

TERMS OF PREFERRED SHARES

Section 1. Definitions. For the purposes hereof, the following terms shall have the following meanings:

“Adjustment Right” means any right granted with respect to any securities issued in connection with, or with respect to, any issuance or sale (or deemed issuance or sale in accordance with Section 7(c)) of shares of Common Stock that could result in a decrease in the net consideration received by the Company in connection with, or with respect to, such securities (including, without limitation, any cash settlement rights, cash adjustment or other similar rights).

“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a Person, as such terms are used in and construed under Rule 405 of the Securities Act.

“Alternate Conversion Eligibility Date” means the date that is twenty-four (24) months from the Closing Date.

“Alternate Conversion Price” means, as of any date of determination, a price per share of Common Stock equal to 85% of the lowest traded price of the Common Stock on the Principal Market during the ten (10) Trading Days immediately preceding such date of determination.

“Applicable Fixed Conversion Price” means, as of any Conversion Date or Repurchase Date (as applicable), the Tier 1 Fixed Conversion Price, the Tier 2 Fixed Conversion Price or the Tier 3 Fixed Conversion Price, as applicable based on the Tier Allocation.

“Approved Stock Plan” means any employee benefit plan or agreement which has been approved by the Board prior to or subsequent to the Closing Date pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer, consultant or director for services provided to the Company in their capacity as such.

“Beneficial Ownership Limitation” shall have the meaning set forth in Section 6(c).

“Black Scholes Consideration Value” means the value of the applicable Option, Convertible Security or Adjustment Right (as the case may be) as of the date of issuance thereof calculated using the Black Scholes Option Pricing Model obtained from the “OV” function on Bloomberg utilizing (i) an underlying price per share equal to the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the public announcement of the execution of definitive documents with respect to the issuance of such Option, Convertible Security or Adjustment Right (as the case may be), (ii) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the remaining term of such Option, Convertible Security or Adjustment Right (as the case may be) as of the date of issuance of such Option, Convertible Security or Adjustment Right (as the case may be), (iii) a zero cost of borrow and (iv) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the “HVT” function on Bloomberg (determined utilizing a 365 day annualization factor) as of the Trading Day immediately following the date of issuance of such Option, Convertible Security or Adjustment Right (as the case may be).

“Bloomberg” means Bloomberg, L.P.

“Business Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States of America or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.

“Certificate of Designations” shall have the meaning set forth in Section 4.

“Closing Sale Price” means, for any security as of any date, the last closing bid price and last closing trade price, respectively, for such security on the Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the closing bid price or the closing trade price (as the case may be) then the last bid price or last trade price, respectively, of such security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange or trading market for such security, the last closing bid price or last trade price, respectively, of such security on the principal securities exchange or trading market where such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price, respectively, of such security in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing bid price or last trade price, respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices). If the Closing Bid Price or the Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing bases, the Closing Bid Price or the Closing Sale Price (as the case may be) of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures herein. All such determinations shall be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such period.

“Closing Date” means the date of execution and delivery of the Exchange and Amendment Agreement dated as of March 9, 2026 (the “Exchange Agreement”) and the initial issuance of the Preferred Shares.

“Commission” means the United States Securities and Exchange Commission.

“Common Stock” means the common stock of the Company, par value $0.00001 per share, and any other class of securities into which such securities may hereafter be reclassified or changed.

“Common Stock Equivalents” means any securities of the Corporation or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.

“Conversion” shall have the meaning set forth in Section 6(a).

“Conversion Date” shall have the meaning set forth in Section 6(a).

“Conversion Floor Amount” means an amount equal to the product of (A) the Floor Price, minus (B) the Conversion Price (calculated as if the Floor Price did not exist), multiplied by (C) the number of shares of Common Stock delivered (or to be delivered) to such Holder on the applicable Share Delivery Date with respect to such Conversion.

“Conversion Restriction Period” shall have the meaning set forth in Section 6(a).

“Conversion Shares” means, collectively, the Common Stock issuable upon conversion of the Preferred Shares in accordance with the terms hereof.

“Convertible Securities” means any stock or other security (other than Options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of Common Stock.

“Delaware Courts” shall have the meaning set forth in Section 8(d).

“Dividend Rate” means (i) zero percent (0%) per annum unless and until a Default (as defined herein) has occurred and is continuing and (ii) after a Default, twenty-four percent (24%) per annum.

“Equity Conditions” means, with respect to a given date of determination:

The Equity Conditions are for the sole benefit of the Holders and may be waived by the applicable Holder at any time and from time to time, in such Holder’s sole and absolute discretion, by written notice to the Company; any such waiver may apply to one or more specific payment dates or conversion dates or to all future payment dates or conversion dates, as specified therein, and a waiver on any occasion shall not constitute a waiver on any future occasion. The Company may not assert the non-satisfaction of the Equity Conditions for any purpose, and only the applicable Holder shall be entitled to assert the non-satisfaction of any Equity Condition. For purposes of this definition, “Eligible Market” means The New York Stock Exchange, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, or any successor thereto. “Variable Rate Transaction” means a transaction in which the Company issues or sells (or enters into any agreement to issue or sell) any debt or equity securities that are convertible into, exchangeable for, or carry the right to receive additional shares of Common Stock at any conversion, exercise, or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the Common Stock at any time after the initial issuance of such debt or equity securities.

“Equity Conditions Failure” means that on any day during the period commencing twenty (20) Trading Days prior to such applicable date of determination, the Equity Conditions have not been satisfied (or waived in writing by the applicable Holder).

“Equity Conditions Measuring Period” means each day during the period beginning thirty (30) calendar days prior to the applicable date of determination and ending on and including the applicable date of determination.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Excluded Securities” means:

“Fixed Conversion Reference Price” means the Closing Sale Price of the Common Stock on the Principal Market on the Trading Day immediately preceding the Closing Date (or, if such date is not a Trading Day, the most recent Trading Day prior thereto). For the avoidance of doubt, the Fixed Conversion Reference Price is determined once as of the Closing Date and shall not be recalculated on any subsequent Conversion Date or other date.

“Fundamental Transaction” means (A) that 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 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 Company or any of its “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 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 at least 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 entities making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock or share 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) at least 50% of the outstanding shares of Common Stock, (y) at least 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 1934 Act) of at least 50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that 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 1934 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) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such subject entities as of the date of this Certificate of Designations 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 Company sufficient to allow such subject entities to effect a statutory short form merger or other transaction requiring other stockholders of the Company to surrender their shares of Common Stock without approval of the stockholders of the Company or (C) 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.

“Holder” shall have the meaning given such term in Section 3.

“Liquidation” shall have the meaning set forth in Section 5.

“Market Price” shall mean the lowest trading price for the Common Stock during the ten (10) Trading Days prior to the applicable date of Conversion.

“Notice of Conversion” shall have the meaning set forth in Section 6(a).

“Options” means any rights, warrants or options to subscribe for or purchase shares of Common Stock or Convertible Securities.

“Original Issue Date” means the date of the first issuance of any Preferred Shares regardless of the number of transfers of any particular Preferred Shares and regardless of the number of certificates which may be issued to evidence such Preferred Shares.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Preferred Shares” shall have the meaning set forth in Section 2.

“Principal Market” means, as of any time of determination, the principal trading market, if any, in which the shares of Common Stock then trade.

“Redemption Market Price” is the lesser of: (a) the closing bid price of the Common Stock on the trading day immediately prior to the date on which such shares are actually deposited into the account of the applicable Holder; or (b) the lowest daily volume weighted average price of the Common Stock during the (5) trading days immediately preceding the date that the Holder receives the Redemption Notice.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Share Delivery Date” shall have the meaning set forth in Section 6(c).

“Stated Value” shall have the meaning set forth in Section 2.

“Subsidiary” means any subsidiary of the Corporation.

“Tier 1 Fixed Conversion Price” means 120% of the Fixed Conversion Reference Price.

“Tier 2 Fixed Conversion Price” means 140% of the Fixed Conversion Reference Price.

“Tier 3 Fixed Conversion Price” means 160% of the Fixed Conversion Reference Price.

“Tier Allocation” means, with respect to any Conversion of Preferred Shares, an allocation of the Stated Value of the Preferred Shares being converted such that (a) fifty percent (50%) of such Stated Value is converted at the Tier 1 Fixed Conversion Price, (b) twenty-five percent (25%) of such Stated Value is converted at the Tier 2 Fixed Conversion Price, and (c) twenty-five percent (25%) of such Stated Value is converted at the Tier 3 Fixed Conversion Price.

“Trading Day” means a day on which the principal Trading Market is open for business.

“Trading Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, or the New York Stock Exchange (or any successors to any of the foregoing).

“Triggering Event” means any of the following:

“Transfer Agent” means Endeavor Trust Corporation, or any successor transfer agent for the Common Stock.

“VWAP” means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported in The Pink Open Market (or a similar organization or agency succeeding to its functions of reporting prices). If the VWAP cannot be calculated for such security on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined by the Company and the Holder. If the Company and the Holder are unable to agree upon the fair market value of such security, then such dispute shall be resolved in accordance with the procedures set forth herein. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.

Section 2. Designation, Amount; Par Value. The series of Preferred Shares shall be designated as Series C Convertible Preferred Shares (the “Preferred Shares”) and the number of shares so designated shall be up to 6,100 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization of the Preferred Shares). Each Preferred Share shall have a par value of $0.001 per share and a stated value equal to $1,000, subject to adjustment as set forth herein (the “Stated Value”).

Section 3. Dividends. From and after the Closing Date, each holder of a Preferred Share (each, a “Holder” and collectively, the “Holders”) shall be entitled to receive dividends (“Dividends”), if and only to the extent that a Default has occurred, which Dividends shall be computed on the basis of a 360-day year and the actual number of days elapsed in each month and shall be payable in arrears on the first Trading Day of each month (each, a “Dividend Date”) with the first Dividend Date being the first Trading Day of the initial calendar month commencing after the Closing Date.

Notwithstanding anything herein to the contrary, if no Equity Conditions Failure has occurred as of the Dividend Notice Date but an Equity Conditions Failure occurs at any time prior to the Dividend Date, (A) the Company shall provide each Holder a subsequent notice to that effect and (B) unless such applicable Holder waives the Equity Conditions Failure, the Dividend shall be paid to such Holder in cash. Dividends to be paid on a Dividend Date Dividend Shares shall be paid in a number of fully paid and nonassessable shares (rounded to the nearest whole share) of Common Stock equal to the quotient of (1) the amount of Dividends payable on such Dividend Date less any Cash Dividends paid and (2) the Dividend Conversion Price in effect on the applicable Dividend Date.

Section 4. Voting Rights. Except as otherwise provided herein or as otherwise required by law, the Preferred Shares shall have no voting rights. However, as long as any Preferred Shares are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority of the then-outstanding Preferred Shares, (a) alter or change adversely the powers, preferences or rights given to the Preferred Shares or alter or amend this Certificate of Designations, Preferences and Rights (the “Certificate of Designations”), (b) amend its Certificate of Incorporation or other charter documents in any manner that materially adversely affects any rights of the Holders, or (c) enter into any agreement with respect to any of the foregoing.

Section 5. Liquidation. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”), the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation an amount on an as-converted basis equal to the amount received by holders of Common Stock. The Corporation shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each Holder.

Section 6. Conversion.

a) Conversions at Option of Holder. Each Preferred Share shall be convertible, in whole or in part at any time and from time to time from and after 90 days from the Date hereof (the “Conversion Restriction Period”), at the option of the Holder thereof, into that number of shares of Common Stock (subject to the limitations set forth in Section 6(c)) determined by dividing the Stated Value of such Preferred Shares (or such portion thereof as is being converted) by Applicable Fixed Conversion Price or the Alternate Conversion Price, as applicable (a “Conversion”). Holders shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A (a “Notice of Conversion”). Each Notice of Conversion shall specify the number of Preferred Shares to be converted, the number of Preferred Shares owned prior to the conversion at issue, the number of Preferred Shares owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior to the date Holder delivers by electronic mail or facsimile such Notice of Conversion to the Corporation (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. In the event of any dispute or discrepancy, the calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions of Preferred Shares, a Holder shall not be required to surrender the certificate(s) representing the Preferred Shares to the Corporation unless all of the Preferred Shares represented thereby are so converted, in which case such Holder shall deliver the certificate representing such Preferred Shares promptly following the Conversion Date at issue. Preferred Shares converted into Common Stock in accordance with the terms hereof shall be canceled and shall not be reissued. The “Conversion Price” for the Preferred Shares shall be determined as follows:

i. Delivery of Conversion Shares Upon Conversion. Not later than the Trading Day after each Conversion Date (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder (A) the number of Conversion Shares being acquired upon the conversion of the Preferred Shares, which Conversion Shares shall be free of restrictive legends and trading restrictions and (B) a bank check in the amount of accrued and unpaid dividends (if any). The Corporation shall deliver the Conversion Shares electronically through the Depository Trust Company or another established clearing corporation performing similar functions.

ii. Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Corporation shall promptly return to the Holder any original Preferred Shares certificate delivered to the Corporation and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Conversion Notice. Without in any way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, or other remedies provided to Holder herein, the parties agree that if the Company causes the Common Shares issuable upon conversion of the Preferred Shares to not be delivered by the second (2nd) Trading Day following the Conversion Date, the Company shall pay to the Holder the greater of: (i) 2% of the value of the shares of Common Stock issuable upon the conversion of the Preferred Shares, or (ii) $3,000 per day, for each day beyond the Conversion Date that the Company fails to deliver such Common Stock, in addition to the product of the number of shares of Common Stock issuable upon the conversion of the Preferred Shares multiplied by the difference between the highest trade price and the lowest trade price of the Common Stock on the Trading Market on which the Common Stock is then listed or designated for quotation (as applicable) during the period beginning on the date that such conversion was submitted, and the date on which the Shares are delivered to Holder’s Prime Broker and are available to be sold. Such cash amount shall be paid to Holder by the fifth day of the month following the month in which it has accrued. The Company agrees that the right to convert is a valuable right to the Holder, and as such, the Company will not take any actions to hamper, delay or prevent any Holder conversion of the Preferred Shares. The damages resulting from a failure, attempt to frustrate, interference with such conversion right are difficult if not impossible to qualify. Accordingly, the parties acknowledge that the liquidated damages provision contained in this Section 6(b)(ii) are justified.

iii. Obligation Absolute. The Corporation’s obligation to issue and deliver the Conversion Shares upon conversion of Preferred Shares in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder. In the event a Holder shall elect to convert any or all of its Preferred Shares, the Corporation may not refuse conversion based on any claim that such Holder or anyone associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Preferred Shares of such Holder shall have been sought and obtained. In the absence of such injunction, the Corporation shall issue Conversion Shares upon a properly noticed conversion. Nothing herein shall limit a Holder’s right to pursue actual damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

iv. Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued Common Stock for the sole purpose of issuance upon conversion of the Preferred Shares as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of the Preferred Shares), not less than three times such aggregate number of shares of Common Stock as shall be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then-outstanding Preferred Shares. The Corporation covenants that all Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.

v. Transfer Taxes and Expenses. The issuance of Conversion Shares on conversion of this Preferred Shares shall be made without charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such Conversion Shares, provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance and delivery of any such Conversion Shares upon conversion in a name other than that of the Holders of such Preferred Shares and the Corporation shall not be required to issue or deliver such Conversion Shares unless or until the Person or Persons requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. The Corporation shall pay all Transfer Agent fees required for same-day processing of any Notice of Conversion and all fees to the Depository Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of the Conversion Shares.

vi. Adjustment Due to Market Price. If at any time after the Alternate Conversion Eligibility Date the Market Price, as determined on the date of each Conversion, is less than the Alternate Conversion Price (including, without limitation, where the Alternate Conversion Price has been increased pursuant to Section 6(i) (Nasdaq Minimum Price Floor) or any other provision hereof), and the Alternate Conversion Price then the Stated Value of the remaining outstanding Preferred Shares held by such Holder shall be automatically increased immediately following each such Conversion by the result of the Conversion Price minus the Market Price multiplied by the number of shares of Common Stock being issued with respect to such Conversion, and dividends (if any) shall accrue thereon in accordance with the terms of this Certificate of Designations. For example, if the Conversion Price is $0.50 and the Market Price is $0.40 and the number of shares issued upon Conversion is 10,000 shares, then the Stated Value of the remaining outstanding Preferred Shares held by such Holder shall be increased by $1,000.00 ($0.50 - $0.40 = $0.10 multiplied by 10,000 = $1,000.00) immediately following such Conversion.

c) Beneficial Ownership Limitation. The Corporation shall not effect any conversion of the Preferred Shares, and a Holder shall not have the right to convert any portion of the Preferred Shares, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below).  For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of the Preferred Shares with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Preferred Shares beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, the Preferred Shares) beneficially owned by such Holder or any of its Affiliates or Attribution Parties.  Except as set forth in the preceding sentence, for purposes of this Section 6(c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(c) applies, the determination of whether the Preferred Shares is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of how many Preferred Shares are convertible shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the Preferred Shares may be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and how many Preferred Shares are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 6(c), in determining the number of outstanding Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding.  Upon the written or oral request (which may be via email) of a Holder, the Corporation shall within two Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding.  In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Preferred Shares, by such Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of Common Stock issuable upon conversion of Preferred Shares held by the applicable Holder. A Holder, upon notice to the Corporation, may decrease or increase the Beneficial Ownership Limitation provisions of this Section 6(c) applicable to its Preferred Shares, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of Common Stock upon conversion of this Preferred Shares held by the Holder and the provisions of this Section 6(c) shall continue to apply. Any such decrease or increase in the Beneficial Ownership Limitation will not be effective until the 61^st day after such notice is delivered to the Corporation and shall only apply to such Holder and no other Holder. Notwithstanding anything to the contrary contained herein, to the extent any shares of Common Stock are otherwise issuable to a Holder upon a Conversion but may not be issued without violating this Section 6(c), such shares shall be held back and shall remain issuable to such Holder at such time or times as issuance would not violate this Section 6(c), upon written notice from such Holder to the Corporation specifying the number of such held back shares requested to be issued. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(c) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Preferred Shares.

d) Mandatory Redemption (Forced Amortization); Payment in Cash or Shares. Beginning on the date that is ninety (90) days after the Closing Date (such date, the “Redemption Start Date”), the Company shall redeem, as a mandatory redemption (each, a “Mandatory Redemption”), the Preferred Shares in equal installments over twelve months (the “Amortization Period”) until all of the then-outstanding Stated Value of the Preferred Shares has been redeemed in full. On each applicable installment date during the Amortization Period, the Company may elect, by delivery of a Redemption Notice to the Holder, to satisfy the applicable Mandatory Redemption payment either (i) in cash on a monthly basis pursuant to clause (a) below or (ii) in shares of Common Stock on a weekly basis pursuant to clause (b) below (each, an “Amortization Payment”).

The “Monthly Redemption Amount” shall equal (A) the aggregate Stated Value of the Preferred Shares originally issued, divided by (B) the number of months in the Amortization Period. The “Weekly Amortization Amount” for purposes of any share-based Amortization Payment shall be determined by dividing the Monthly Redemption Amount by four (4) (or such other allocation as may be set forth herein).

i. Company Election to Pay Cash or Shares. (a) Cash Amortization. If the Company elects to pay the applicable Amortization Payment in cash, such Amortization Payment shall be made monthly, in cash, in an amount equal to the applicable Monthly Redemption Amount (or such lesser amount as is required to redeem the remaining outstanding Stated Value of the Preferred Shares), at the Stated Value of the Preferred Shares being redeemed. (b) Share Amortization. If the Company elects to pay the applicable Amortization Payment in shares of Common Stock, the Company shall deliver the applicable Redemption Notice no less than three (3) nor more than seven (7) Business Days prior to the date on which such shares are to be deposited into the account of the applicable Holder. Such Amortization Payments shall be made weekly (not monthly), in shares of Common Stock, in an amount equal to the applicable Weekly Amortization Amount (or such lesser amount as is required to redeem the remaining outstanding Stated Value of the Preferred Shares), based on the Redemption Market Price on the applicable Redemption Notice date; provided that payment in shares shall be permitted only if all Equity Conditions are satisfied as of the applicable weekly payment date (unless waived, in whole or in part, by the applicable Holder in its sole discretion). If any Equity Condition is not satisfied (and has not been waived by the applicable Holder) as of a weekly payment date, the applicable weekly Amortization Payment shall instead be made in cash on such weekly payment date (and shall not defer) at the Stated Value of the Preferred Shares being redeemed.

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e) Company Repurchase Option. At any time during the period commencing on the Closing Date and ending on the day immediately prior to the Alternate Conversion Eligibility Date (the “Repurchase Option Period”), the Company shall have the option, upon written notice to the applicable Holder (a “Repurchase Notice”), to repurchase all or any portion of the then-outstanding Preferred Shares held by such Holder (or such portion of the Stated Value thereof as is specified in the Repurchase Notice) for cash, without any conversion into Common Stock (a “Repurchase”). The cash repurchase price for the portion of the Stated Value being repurchased shall equal the Stated Value of the Preferred Shares (or portion thereof) being repurchased, plus any accrued and unpaid Dividends thereon (the “Repurchase Price”). The Repurchase Notice shall specify the portion of Preferred Shares (or Stated Value) to be repurchased and the date of payment of the Repurchase Price (the “Repurchase Date”), which Repurchase Date shall be no earlier than three (3) Business Days after delivery of the Repurchase Notice. Upon payment in full of the Repurchase Price on the Repurchase Date, the applicable Preferred Shares (or the applicable portion of the Stated Value thereof) shall be deemed repurchased and cancelled and shall no longer be outstanding, and the Holder shall have no further rights with respect thereto (other than rights that have accrued and remain unpaid as of the Repurchase Date). For the avoidance of doubt, any Repurchase pursuant to this Section 6(e) shall be in addition to, and shall not limit, any redemption or amortization rights set forth herein.

f) Stockholder Approval Limitation. Notwithstanding anything to the contrary contained in this Certificate of Designations or any other Transaction Document, no Holder shall be permitted to convert Preferred Shares or otherwise receive shares of Common Stock to the extent (but only to the extent) that such conversion or issuance would require stockholder approval pursuant to the rules or regulations of the applicable Trading Market, including Nasdaq Listing Rule 5635(d) (or any successor provision), unless and until such stockholder approval is obtained. Any purported conversion or issuance in excess of such limitation shall be deemed null and void ab initio and of no force or effect.

g) Deferred Conversion. To the extent any conversion of Preferred Shares is prohibited by the foregoing limitation in Section 6(f), the Holder shall be entitled to convert the remaining portion of such Preferred Shares promptly upon the receipt of the requisite stockholder approval, without any further action, consent, or agreement of the Corporation.

h) Obligation to Seek Approval; Default. If stockholder approval is required pursuant to the provisions of Section 6(f), the Corporation shall, at its sole cost and expense, obtain such stockholder approval within thirty (30) days following the date on which such approval is first required. The failure of the Corporation to obtain such stockholder approval within such thirty (30) day period shall constitute a Default under this Certificate of Designations, without the requirement of any further notice or cure period.

i) Nasdaq Minimum Price Floor. Notwithstanding anything to the contrary contained herein, if, on or after the Alternate Conversion Eligibility Date (or following the occurrence of a Default), the Alternate Conversion Price otherwise applicable to a Conversion would be less than the minimum price per share at which shares of Common Stock may be issued without stockholder approval under the rules or regulations of the applicable Trading Market (including Nasdaq Listing Rule 5635(d) or any successor provision) (such minimum price, the “Nasdaq Minimum Price”), then the Conversion Price for such Conversion shall be deemed to be the Nasdaq Minimum Price. For purposes of this Section 6(i), the “Nasdaq Minimum Price” shall be the Closing Sale Price of the Common Stock on the Principal Market on the Trading Day immediately preceding the applicable Conversion Date (or, if such date is not a Trading Day, the most recent Trading Day prior thereto), or such other minimum price as may be required by the applicable Trading Market rules.

Section 7. Certain Adjustments.

a) Stock Dividends and Stock Splits. If the Corporation, at any time while the Preferred Shares are outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in Common Stock on Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, the Preferred Shares), (ii) subdivides outstanding Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of Common Stock s, any shares of capital stock of the Corporation, the number of shares of Common Stock to be issued upon Conversion of the Preferred Shares, and the amount of assets to be paid to the Holders upon the liquidation, dissolution or winding up of the Corporation, shall be appropriately adjusted so that the Holders shall be treated by the Corporation equitably relative to all other holders of capital stock of the Corporation. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

b) Pro Rata Distributions. During such time as these Preferred Shares are outstanding, if the Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the issuance of these Preferred Shares, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of these Preferred Shares (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).

c) Adjustment of Conversion Price upon Issuance of Common Stock. Notwithstanding the foregoing, if and whenever on or after the Initial Issuance Date the Company grants, issues or sells, or in accordance with this Section is deemed to have granted, issued or sold, any shares of Common Stock (including the granting, issuance or sale of shares of Common Stock owned or held by or for the account of the Company, but excluding any Excluded Securities granted, issued or sold or deemed to have been granted, issued or sold) for a consideration per share (the “New Issuance Price”) less than a price equal to the Conversion Price in effect immediately prior to such granting, issuance or sale or deemed granting, issuance or sale (such Conversion Price then in effect is referred to herein as the “Applicable Price”) (the foregoing a “Dilutive Issuance”), then, immediately after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price. For all purposes of the foregoing (including, without limitation, determining the adjusted Conversion Price and the New Issuance Price under this Section), the following shall be applicable:

i. Issuance of Options. If the Company in any manner grants, issues or sells (or enters into any agreement to grant, issue or sell) any Options and the lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the granting, issuance or sale of such Option for such price per share. For purposes of this Section, the “lowest price per share for which one share of Common Stock is at any time issuable upon the exercise of any such Option or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to any one share of Common Stock upon the granting, issuance or sale of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof and (y) the lowest exercise price set forth in such Option for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon the exercise of any such Options or upon conversion, exercise or exchange of any Convertible Securities issuable upon exercise of any such Option or otherwise pursuant to the terms thereof, minus (2) the sum of all amounts paid or payable to the holder of such Option (or any other Person) with respect to any one share of Common Stock upon the granting, issuance or sale of such Option, upon exercise of such Option and upon conversion, exercise or exchange of any Convertible Security issuable upon exercise of such Option or otherwise pursuant to the terms thereof plus the value of any other consideration (including, without limitation, consideration consisting of cash, debt forgiveness, assets or any other property) received or receivable by, or benefit conferred on, the holder of such Option (or any other Person). Except as contemplated in clause (c) below, no further adjustment of the Conversion Price shall be made upon the actual issuance of such share of Common Stock or of such Convertible Securities upon the exercise of such Options or otherwise pursuant to the terms thereof or upon the actual issuance of such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities.

ii. Issuance of Convertible Securities. If the Company in any manner issues or sells (or enters into any agreement to issue or sell) any Convertible Securities and the lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof is less than the Applicable Price, then such share of Common Stock shall be deemed to be outstanding and to have been issued and sold by the Company at the time of the issuance or sale (or the time of execution of such agreement to issue or sell, as applicable) of such Convertible Securities for such price per share. For the purposes of this Section, the “lowest price per share for which one share of Common Stock is at any time issuable upon the conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof” shall be equal to (1) the lower of (x) the sum of the lowest amounts of consideration (if any) received or receivable by the Company with respect to one share of Common Stock upon the issuance or sale (or pursuant to the agreement to issue or sell, as applicable) of the Convertible Security and upon conversion, exercise or exchange of such Convertible Security or otherwise pursuant to the terms thereof and (y) the lowest conversion price set forth in such Convertible Security for which one share of Common Stock is issuable (or may become issuable assuming all possible market conditions) upon conversion, exercise or exchange thereof or otherwise pursuant to the terms thereof minus (2) the sum of all amounts or payable to the holder of such Convertible Security (or any other Person) with respect to any one share of Common Stock upon the issuance or sale (or the agreement to issue or sell, as applicable) of such Convertible Security plus the value of any other consideration received or receivable (including, without limitation, any consideration consisting of cash, debt forgiveness, assets or other property) by, or benefit conferred on, the holder of such Convertible Security (or any other Person). Except as contemplated in clause (c) below, no further adjustment of the Conversion Price shall be made upon the actual issuance such shares of Common Stock upon conversion, exercise or exchange of such Convertible Securities or otherwise pursuant to the terms thereof, and if any such issuance or sale of such Convertible Securities is made upon exercise of any Options for which adjustment of the Conversion Price has been or is to be made pursuant to other provisions of this Section, except as contemplated in clause (iii) below, no further adjustment of the Conversion Price shall be made by reason of such issuance or sale.

iii. Change in Option Price or Rate of Conversion. If the purchase or exercise price provided for in any Options, the additional consideration, any, payable upon the issue, conversion, exercise or exchange of any Convertible Securities, or the rate at which any Convertible Securities are convertible into or exercisable or exchangeable for shares of Common Stock increases or decreases at any time (other than proportional changes in conversion or exercise prices, as applicable, in connection with an event referred to in Section 7(c) below), the Conversion Price in effect at the time of such increase or decrease shall be adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities provided for such increased or decreased purchase price, additional consideration or increased or decreased conversion rate (as the case may be) at the time initially granted, issued or sold. For purposes of this Section, if the terms of any Option or Convertible Security (including, without limitation, any Option or Convertible Security that was outstanding as of Closing Date) are increased or decreased in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the shares of Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such increase or decrease. No adjustment pursuant to this Section shall made if such adjustment would result in an increase of the Conversion Price then in effect.

iv. Calculation of Consideration Received. If any Option and/or Convertible Security and/or Adjustment Right is issued in connection with the issuance or sale or deemed issuance or sale of any other securities of the Company (as determined by the Holder, the “Primary Security”, and such Option and/or Convertible Security and/or Adjustment Right, the “Secondary Securities”), together comprising one integrated transaction (or one or more transactions if such issuances or sales or deemed issuances or sales of securities of the Company either (A) have at least one investor or purchaser in common, (B) are consummated in reasonable proximity to each other and/or (C) are consummated under the same plan of financing), the aggregate consideration per share of Common Stock with respect to such Primary Security shall be deemed to be equal to the difference of (x) the lowest price per share for which one share of Common Stock was issued (or was deemed to be issued pursuant to Section 7(c)(ii)(a) or 7(c)(ii)(b) above, as applicable) in such integrated transaction solely with respect to such Primary Security, minus (y) with respect to such Secondary Securities, the sum of (I) the Black Scholes Consideration Value of each such Option, if any, (II) the fair market value (as determined by the Holder in good faith) or the Black Scholes Consideration Value, as applicable, of such Adjustment Right, if any, and (III) the fair market value (as determined by the Holder) of such Convertible Security, if any, in case, as determined on a per share basis in accordance with this Section. If any shares of Common Stock, Options or Convertible Securities are issued or sold or deemed to have been issued or sold for cash, the consideration received therefor (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes Consideration Value) will be deemed to be the net amount of consideration received by the Company therefor. If any shares of Common Stock, Options or Convertible Securities are issued or sold for a consideration other than cash, the amount of such consideration received the Company (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes Consideration Value) will be the fair value of such consideration, except where such consideration consists of publicly traded securities, in which case the amount of consideration received by the Company for such securities will be the arithmetic average of the VWAPs of such security for each of the five (5) Trading Days immediately preceding the date of receipt. If any shares of Common Stock, Options or Convertible Securities are issued to the owners of the non-surviving entity in connection with any merger in which the Company is the surviving entity, the amount of consideration therefor (for the purpose of determining the consideration paid for such Common Stock, Option or Convertible Security, but not for the purpose of the calculation of the Black Scholes Consideration Value) will be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such shares of Common Stock, Options or Convertible Securities (as the case may be). The fair value of any consideration other than cash or publicly traded securities will be determined jointly by the Company and the Holder. If such parties are unable to reach agreement within ten (10) days after the occurrence of an event requiring valuation (the “Valuation Event”), the fair value of such consideration will be determined within five (5) Trading Days after the tenth (10th) day following such Valuation Event by an independent, reputable appraiser jointly selected by the Company and the Holder. The determination of such appraiser shall be final and binding upon all parties absent manifest error and the fees and expenses of such appraiser shall be borne by the Company.

d) Record Date. If the Company takes a record of the holders of shares of Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in shares of Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase shares of Common Stock, Options or Convertible Securities, then such record date will be deemed to be the date of the issuance or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase (as the case may be).

e) Most Favored Nation Provision.  Notwithstanding the foregoing, during such time as this Preferred Shares is outstanding, upon any issuance of (or announcement of intent to effect an issuance of) any security (excluding any issuances pursuant to any ELOC or similar transaction), or amendment to (or announcement of intent to effect an amendment to) any security that was originally issued before the Closing Date, by the Company or any Subsidiary, with any term that the Holder reasonably believes is more favorable to the purchaser of such security than to the Holder of Preferred Shares, or with a term in favor of the purchaser of such security that the Holder reasonably believes was not similarly provided to the Holder, then (i) the Company shall notify Holders of such additional or more favorable term within three (3) business days of the issuance and/or amendment (as applicable) of the respective security, and (ii) such term, at Holder’s option, shall become a part of the Certificate of Designations. The types of terms contained in another security that may be more favorable to the purchaser of such security include, but are not limited to, terms addressing conversion price, conversion price discounts and adjustments, prepayment rate, conversion lookback periods, interest rates, original issue discounts, stock sale price, private placement price per share, commitment shares, warrant coverage, and warrant exercise price. If Holder elects to have the term become a part of the Certificate of Designations, then the Company shall immediately deliver acknowledgment of such adjustment in form and substance reasonably satisfactory to the Holder (the “Acknowledgment”) within three (3) business days of Company’s receipt of request from the Holder (the “Adjustment Deadline”), provided that Company’s failure to timely provide the Acknowledgement shall not affect any automatic amendments contemplated hereby.

f) Rollover Rights. So long as this Preferred Shares is outstanding, if the Company completes any single public offering or private placement of its equity, equity-linked or debt securities (each, a “Future Transaction”), the Holder may, in its sole discretion, elect to apply as purchase consideration for such Future Transaction: (i) all, or any portion, of the then outstanding principal amount of the Preferred Shares and any accrued but unpaid interest, including any amounts that would be added to the principal outstanding balance in the event that any redemption right or prepayment right is exercised by either the Holder or the Company, and (ii) any securities of the Company then held by the Holder, at their fair value (the “Rollover Rights”). The Company shall give written notice to Holder as soon as practicable, but in no event less than ten (10) calendar days before the anticipated closing date of such Future Transaction. The Holder may exercise its Rollover Rights by providing the Company written notice of such exercise within five Business Days before the closing of the Future Transaction. In the event Holder exercises its Rollover Rights, then such elected portion with respect to (i) and (ii) above, shall automatically convert into the corresponding securities issued in such Future Transaction under the terms of such Future Transaction, such that the Purchaser will receive all securities (including, without limitation, any warrants) issuable pursuant to the Future Transaction.

g) Holder’s Right of Adjusted Conversion Price. In addition to and not in limitation of the other provisions of this Section, if the Company in any manner issues or sells or enters into any agreement to issue or sell, any Common Stock, Options or Convertible Securities (excluding any Excluded Securities) (any such securities, “Variable Price Securities”) after the Initial Issuance Date that are issuable pursuant to such agreement or convertible into or exchangeable or exercisable for shares of Common Stock at a price which varies or may vary with the market price of the shares of Common Stock, including by way of one or more reset(s) to a fixed price, but exclusive of such formulations reflecting share splits, share combinations, and share dividends (each of the formulations for such variable price being herein referred to as, the “Variable Price”), the Company shall provide written notice thereof via electronic mail to each Holder on the date of such agreement and/or the issuance of such shares of Common Stock, Convertible Securities or Options, as applicable. From and after the date the Company enters into such agreement or issues any such Variable Price Securities, each Holder shall have the right, but not the obligation, in its sole discretion to substitute the Variable Price for the Conversion Price upon conversion of the Preferred Shares by designating in the Conversion Notice delivered upon any conversion of Preferred Shares that solely for purposes of such conversion such Holder is relying on the Variable Price rather than the Conversion Price then in effect. A Holder’s election to rely on a Variable Price for a particular conversion of Preferred Shares shall not obligate such Holder to rely on a Variable Price for any future conversions of Preferred Shares.

h) Calculations. All calculations under this Section 7 shall be made by rounding to the nearest cent or the nearest 1/100th of a share, as applicable. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.

i) Fundamental Transaction. The Company shall not enter into or be party to a Fundamental Transaction unless the successor entity assumes in writing all of the obligations of the Company under this Certificate of Designation pursuant to written agreements in form and substance reasonably satisfactory to the Holder, including agreements to deliver to each holder of Preferred Shares in exchange for such Preferred Shares a security of the successor entity evidenced by a written instrument substantially similar in form and substance to this Certificate of Designations, including, without limitation, having a stated value and dividend rate equal to the stated value and dividend rate of the Preferred Shares held by the Holders and having similar ranking to the Preferred Shares, and reasonably satisfactory to the Required Holder. Upon the occurrence of any Fundamental Transaction, the successor entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Certificate of Designation referring to the “Company” shall refer instead to the successor entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Certificate of Designation with the same effect as if such successor entity had been named as the Company herein and therein. In addition to the foregoing, upon consummation of a Fundamental Transaction, the successor entity shall deliver to each Holder confirmation that there shall be issued upon conversion or redemption of the Preferred Shares at any time after the consummation of such Fundamental Transaction, in lieu of the shares of Common Stock (or other securities, cash, assets or other property) issuable upon the conversion or redemption of the Preferred Shares prior to such Fundamental Transaction, such shares of the publicly traded common stock (or their equivalent) of the successor entity which each Holder would have been entitled to receive upon the happening of such Fundamental Transaction had all the Preferred Shares held by each Holder been converted immediately prior to such Fundamental Transaction (without regard to any limitations on the conversion of the Preferred Shares contained in this Certificate of Designation), as adjusted in accordance with the provisions of this Certificate of Designation. Notwithstanding the foregoing, such Holder may elect, at its sole option, by delivery of written notice to the Company to waive this Section 7(d) to permit the Fundamental Transaction without the assumption of the Preferred Shares. The provisions of this Section 7 shall apply similarly and equally to successive Fundamental Transactions and shall be applied without regard to any limitations on the conversion or redemption of the Preferred Shares.

j) Notice to the Holders. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Corporation shall declare a special, nonrecurring cash dividend on or a redemption of the shares of Common Stock, (C) the Corporation shall authorize the granting to all holders of the shares of Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the shares of Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation, or any compulsory share exchange whereby the shares of Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of this Preferred Shares, and shall cause to be delivered to each Holder at its last address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the shares of Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Corporation or any of the Subsidiaries, the Corporation shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert the Preferred Shares (or any part hereof) during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

Section 8. Miscellaneous.

a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally or sent by a nationally recognized overnight courier service, addressed to the Corporation, at 6400 SW Rosewood Street, Lake Oswego, Oregon 97035, Attention Chief Executive Officer, by electronic mail at [email protected], or such other email address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 8. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by electronic mail, or sent by a nationally recognized overnight courier service addressed to each Holder at the email address or address of such Holder appearing on the books of the Corporation, or if no such email address or address appears on the books of the Corporation, at the principal place of business of such Holder. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via electronic mail at the email address provided for in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via electronic mail at the email address provided for in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.

b) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designations shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages and accrued dividends, as applicable, on the Preferred Shares at the time, place, and rate, and in the coin or currency, herein prescribed.

c) Lost or Mutilated Preferred Shares Certificate. If a Holder’s Preferred Shares certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the Preferred Shares so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation.

d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designations shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by this Certificate of Designations (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees or agents) shall be commenced in the state and federal courts sitting in the State of Delaware (the “Delaware Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the Delaware Courts 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 such Delaware Courts, or such Delaware Courts are improper or inconvenient venue for such proceeding. 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 via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designations 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 other manner permitted by applicable law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designations or the transactions contemplated hereby. If any party shall commence an action or proceeding to enforce any provisions of this Certificate of Designations, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.

e) Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designations shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designations or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designations on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designations on any other occasion. Any waiver by the Corporation or a Holder must be in writing.

f) Severability. If any provision of this Certificate of Designations is invalid, illegal or unenforceable, the balance of this Certificate of Designations shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.

g) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.

h) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designations and shall not be deemed to limit or affect any of the provisions hereof.

*********************

RESOLVED, FURTHER, that the Chief Executive Officer, and the secretary or any assistant secretary, of the Corporation be and they hereby are authorized and directed to prepare and file this Certificate of Designations in accordance with the foregoing resolution and the provisions of Delaware law.

IN WITNESS WHEREOF, the undersigned has executed this Certificate this 9th day of March, 2026.

ANNEX A

NOTICE OF CONVERSION

(To be Executed by the Registered Holder in order to Convert PREFERRED Shares)

The undersigned hereby elects to convert the number of shares of Series C Convertible Preferred Shares indicated below into common stock, par value $0.00001 per share (the “Common Stock”), of Functional Brands Inc., a Delaware corporation (the “Corporation”), according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as may be required by the Corporation. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.

Conversion calculations:

Date to Effect Conversion: _____________________________________________

Number of Preferred Shares owned prior to Conversion: _______________________

Stated Value of Preferred Shares to be Converted: ____________________________

Number of shares of Common Stock to be Issued: ____________________________

Number of Preferred Shares subsequent to Conversion: ________________________

Address for Delivery: ______________________

or

DWAC Instructions:

Broker no: _____________________

Account no: ___________________

Exhibit 4.1

THE ISSUER WILL MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE: (1) THE ISSUE PRICE AND ISSUE DATE OF THE NOTE, (2) THE YIELD TO MATURITY OF THE NOTE, AND (3) ANY OTHER INFORMATION REQUIRED TO BE MADE AVAILABLE BY U.S. TREASURY REGULATIONS UPON RECEIVING A WRITTEN REQUEST FOR SUCH INFORMATION.

NEITHER THE ISSUANCE NOR SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE 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 (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER AND ACCEPTABLE BY THE BORROWER), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS 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.

SENIOR SECURED CONVERTIBLE PROMISSORY NOTE

For value received, Functional Brands Inc., a corporation organized under the laws of the State of Delaware (the “Borrower”), hereby promises to pay _______, a ________ organized under the laws of the State of _________, or registered assigns (the “Holder”) the principal sum of ______________ Dollars ($_________) (the “Principal Amount”), together with interest on the Principal Amount, on the dates set forth below or upon acceleration or otherwise, as set forth herein (or as may be amended, extended, renewed and refinanced, collectively, this “Note”). Interest on this Note shall accrue at a rate equal to twelve percent (12%) per annum (the “Interest Rate”). In no event shall the Interest Rate exceed the maximum rate allowed by law; any interest payment which would for any reason be unlawful under applicable law shall be applied to principal.

This Note is issued in connection with the Exchange and Amendment Agreement dated as of March 9, 2026, by and among the Borrower and the Holders of the Borrower’s Series A and Series B Convertible Preferred Stock (the “Exchange Agreement”). The principal amount of this Note is equal to the Note Principal Amount (as defined in the Exchange Agreement) for the Holder’s exchanged shares.

The maturity date (“Maturity Date”) shall be seventeen (17) months after the Issue Date. The principal sum, as well as interest and other fees shall be due and payable in accordance with the payment terms set forth in Article I herein. Subject to Section 1.5 below, this Note may not be prepaid in whole or in part except as otherwise explicitly set forth herein.

Any amount of principal, interest, other amounts due hereunder or penalties on this Note, which is not paid by the due date as specified herein, shall bear interest at the lesser of the rate of twenty four percent (24%) per annum or the maximum legal amount permitted by law (“Default Interest Rate”), from the due date thereof until the same is paid in full, including following the entry of a judgment in favor of Holder (“Default Interest”).

It is further acknowledged and agreed that the Principal Amount owed by Borrower under this Note shall be increased by the amount of all reasonable expenses incurred by the Holder in connection with the collection of amounts due, or enforcement of any terms pursuant to, this Note. All such expenses shall be deemed added to the Principal Amount hereunder to the extent such expenses are paid or incurred by the Holder.

This Note is issued by the Borrower to the Holder pursuant to the terms of the Exchange Agreement (the “Exchange Agreement”), terms of which are incorporated by reference and made part of this Note. Each capitalized term used herein, and not otherwise defined, shall have the meaning ascribed thereto in the Exchange Agreement. As used herein, the term “Trading Day” means any day that the Common Shares are listed for trading or quotation on any US based exchange or electronic quotation systems on which the Common Shares are then traded.

This Note shall be a senior secured obligation of the Borrower, with first priority over all current and future Indebtedness (as defined below) of the Borrower and any subsidiaries, whether such subsidiaries exist on the Issue Date or are created or acquired thereafter (each a “Subsidiary” and collectively, the “Subsidiaries”). The obligations of the Borrower under this Note are secured pursuant to the terms of the security and pledge agreement, of even date herewith, by and between the Borrower and the Holder (the “Security and Pledge Agreement” and collectively with the Exchange Agreement, and other related ancillary documents and agreements executed in connection thereto, the “Transaction Documents”), a copy of which is attached hereto as Exhibit C. The terms of the Transaction Documents are incorporated by reference and made part of this Note. With respect to any Subsidiary created or acquired subsequent to the Issue Date, Borrower agrees to cause such Subsidiary to execute any documents or agreements that would bind the Subsidiary to the terms herein and in the other Transaction Documents.

This Note is free from all taxes, liens, claims and encumbrances with respect to the issue thereof and shall not be subject to preemptive rights or other similar rights of shareholders or members, as applicable, of Borrower, and will not impose personal liability upon the holder thereof.

In addition to the terms above, the following terms shall also apply to this Note:

ARTICLE I. PAYMENTS

1.1 Principal Payments. Beginning on the date that is one (1) year following the Issue Date (the “Amortization Start Date”), the Borrower shall amortize the outstanding Principal Amount of this Note as follows: (a) the Borrower shall amortize one-sixth (1/6th) of the original Principal Amount in each calendar month during the Amortization Period (the “Monthly Amortization Amount”); (b) for share-based amortization payments, the weekly amortization amount (the “Weekly Amortization Amount”) shall be the Monthly Amortization Amount divided by four (4); (c) if the Borrower elects to pay in cash, amortization payments shall be made monthly at the applicable amortization price; (d) if the Borrower elects to pay in shares of Common Stock, amortization payments shall be made weekly in an amount not less than the Weekly Amortization Amount, provided that payment in shares shall be permitted only if all Equity Conditions (as defined in the Exchange Agreement) are satisfied as of the applicable payment date (unless waived by the Holder in its sole discretion); the number of shares issuable shall be determined by dividing the applicable Weekly Amortization Amount by the Redemption Market Price (as defined below); (e) if any Equity Condition is not satisfied and has not been waived by the Holder, the applicable weekly amortization payment shall instead be made in cash; and (f) “Redemption Market Price” means the lesser of (i) the closing bid price of the Common Stock on the Trading Day immediately prior to the date on which such shares are actually deposited into the account of the Holder, or (ii) the lowest daily volume weighted average price of the Common Stock during the five (5) Trading Days immediately preceding the date on which the Borrower provides notice of its election to pay in shares. Any remaining unpaid Principal Amount, together with all accrued and unpaid interest and other amounts due hereunder, shall be due and payable on the Maturity Date.

1.2 Interest Payments. Interest on this Note shall be: (i) charged on a monthly basis (that is, so long as this Note is outstanding, on each monthly anniversary of the Issue Date (the “Interest Date”), the amount of accrued interest is computed on the basis of a 360 day year and the actual number of days elapsed, and shall accrue on the sum of the principal amount plus, if applicable, any accrued and previously due but unpaid interest); and (ii) is payable at maturity.

1.3 Other Payment Obligations. All payments, fees, penalties, and other charges, if any, due under this Note shall be payable pursuant to the terms contained herein, but in any case, shall be payable no later than the Maturity Date.

1.4 Gross up. If any taxes are levied or imposed on payments, fees, penalties, and other charges, if any, due under this Note or the other Transaction Documents, Borrower agrees to pay the full amount of such taxes and such additional amounts as may be necessary so that every payment of all amounts due under the Note or the other Transaction Documents, including any amount paid pursuant to this Section 1.4 after withholding or deduction for or on account of any taxes, will not be less than the amount provided for under this Note or the other Transaction Documents.

1.5 Prepayment. Borrower shall have the right at any time prior to the Maturity Date, upon five (5) days’ notice to the Holder (the “Prepayment Notice”), to prepay the Note by making a payment to Holder equal to 100% multiplied by the sum of (i) the outstanding Principal Amount, (ii) all accrued and unpaid interest, and (iii) any other amounts due under the Note (the “Prepayment Amount”). The Prepayment Notice must be received by Holder no later than five (5) days prior to the date that Borrower proposes to remit the Prepayment Amount (the “Prepayment Date”). Holder may convert any or all of this Note into shares of Common Stock prior to the Prepayment Date. If Borrower does not remit the Prepayment Amount on or before the Prepayment Date, then (i) the Prepayment Notice and the Prepayment right granted hereunder shall be canceled, (ii) Borrower shall thereafter not be permitted to Prepay the Note, and (iii) Holder’s right to convert any or all of this Note into shares of Common Stock shall be reinstated.

1.6 Intentionally Omitted.

1.7 All payments of principal and interest due hereunder (to the extent not converted into Borrower’s common stock (the “Common Stock” or “Common Shares”)) shall be paid by wire transfer or ACH (automated clearing house) transfer to the account specified in wire instructions provided by the Holder to the Borrower in writing. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest, then to any late charges, and then to principal. 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 preceding day which is a business day. As used in this Note, the term “business day” shall mean any day other than a Saturday, Sunday or a day on which commercial banks in the city of New York, New York are authorized or required by law or executive order to remain closed.

ARTICLE II. CONVERSION RIGHTS

2.1 Conversion Right. The Holder shall have the right at any time, at the Holder’s option, to convert all or any part of the outstanding and unpaid principal amount and accrued and unpaid interest of this Note into fully paid and non-assessable Common Shares of Borrower or other securities into which such Common Shares shall hereafter be changed or reclassified (each, a “Conversion Share”) at the conversion price (the “Conversion Price”) determined as provided herein (a “Conversion”); provided, however, that in no event shall the Holder be entitled to convert any portion of this Note in excess of that portion of this Note upon conversion of which the sum of (1) the number of Common Shares beneficially owned by the Holder and its affiliates (other than Common Shares which may be deemed beneficially owned through the ownership of the unconverted portion of the Note or the unexercised or unconverted portion of any other security of Borrower subject to a limitation on conversion or exercise analogous to the limitations contained herein, and, if applicable, net of any shares that may be deemed to be owned by any person not affiliated with the Holder who has purchased a portion of the Note from the Holder) and (2) the number of Common Shares issuable upon the conversion of the portion of this Note with respect to which the determination of this proviso is being made, would result in beneficial ownership by the Holder and its affiliates of more than 4.99% of the outstanding Common Shares. For purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Regulations 13D-G thereunder, except as otherwise provided in clause (1) of such proviso, provided, further, however, that the limitations on conversion may be waived (up to a maximum of 9.99%) by the Holder upon, at the election of the Holder, not less than 61 days’ prior notice to Borrower (the “Waiver Notice”), and the provisions of the conversion limitation in effect prior to the waiver, shall continue to apply until such 61st day (or such later date, as determined by the Holder, as may be specified in such Waiver Notice). Notwithstanding the foregoing requirements with respect to the Waiver Notice, if the Holder is not subject to the reporting requirements under Section 13 of the Exchange Act with respect to the securities of the Borrower, then the Holder may elect to waive the limitations (up to a maximum of 9.99%) immediately upon providing a Waiver Notice to the Borrower, and the provisions of the conversion limitation in effect prior to the waiver, shall continue to apply only as determined by the Holder, as may be specified in such Waiver Notice. The beneficial ownership limitation described in this Section 2.1 shall be referred to hereinafter as the “Beneficial Ownership Limitation.” The number of Common Shares to be issued upon each conversion of this Note shall be determined by dividing the Conversion Amount (as defined below) by the applicable Conversion Price then in effect on the date specified in the notice of conversion, in the form attached hereto as Exhibit A (the “Notice of Conversion”), delivered to Borrower by the Holder in accordance with Section 2.4 below; provided that the Notice of Conversion is submitted by facsimile or e-mail (or by other means resulting in, or reasonably expected to result in, notice) to Borrower before 8:00 p.m., New York, New York time on such conversion date (the “Conversion Date”). The term “Conversion Amount” means, with respect to any conversion of this Note, the sum of: (1) the principal amount of this Note to be converted in such conversion; plus (2) at the Holder’s option, accrued and unpaid interest; provided, however, that at the option of Holder, the accrued and unpaid interest can be converted prior to any other amounts under the Note, if any, on such principal amount at the interest rates provided in this Note to the Conversion Date; plus (3) at the Holder’s option, Default Interest, if any, on the amounts referred to in the immediately preceding clauses (1) and/or (2); plus (4) the Holder’s expenses relating to a Conversion, including but not limited to amounts paid by Holder on the Borrower’s transfer agent account; plus (5) at the Holder’s option, any amounts owed to the Holder pursuant to Sections 2.3 and 2.4(g) hereof. Amounts converted under this Note as specified in the Notice of Conversion will apply first to an fees or penalties, then accrued and unpaid interest, and then principal.

2.2 Conversion Price.

(a) Calculation of Conversion Price. The Conversion Price shall be a equal to 120% of the closing trading price of the Common Shares on the trading day immediately prior to the Exchange Date (as defined in the Exchange Agreement) (the “Fixed Conversion Price”); provided that upon the occurrence of an Event of Default (as defined below) (the date of such occurrence referred to as the “Default Date”), the Conversion Price shall be reduced to 85% of the lowest traded price of the Common Shares during the ten (10) Trading Day period ending on the Trading Day immediately preceding the applicable Conversion Date, provided that if the Conversion Notice is delivered after the close of regular trading hours on the Conversion Date, such period shall instead end on the Conversion Date (the “Alternative Conversion Price”). In no event shall the Conversion Price be greater than the Fixed Conversion Price. As used herein, “VWAP” means, for any Trading Day, the volume weighted average price of the Common Shares as reported by Bloomberg L.P. (or a comparable, reliable reporting service selected by the Holder in good faith) for trades executed during regular trading hours on the principal Trading Market for such Trading Day.

(b) Fixed Conversion Price Adjustments.

(1) Intentionally Omitted.

(2) Common Share Distributions and Splits. If Borrower, at any time while this Note is outstanding: (i) pays a distribution on its Common Shares or otherwise makes a distribution or distributions payable in Common Shares on its Common Shares; (ii) subdivides outstanding Common Shares into a larger (or smaller) number of shares; or (iii) issues, in the event of a reclassification of shares of Common Shares, any Common Shares of Borrower, then the Fixed Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of Common Shares (excluding any treasury shares of Borrower) outstanding immediately before such event and of which the denominator shall be the number of Common Shares outstanding immediately after such event.

(3) Fundamental Transaction. If, at any time while this Note is outstanding, (i) Borrower effects any merger or consolidation of Borrower with or into another person, (ii) Borrower effects any sale of all or substantially all of its assets in one transaction or a series of related transactions, (iii) any tender offer or exchange offer (whether by Borrower or another person) is completed pursuant to which holders of Common Shares are permitted to tender or exchange their shares for other securities, cash or property, or (iv) Borrower effects any reclassification of the Common Shares or any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property (in any such case, a “Fundamental Transaction”), then, upon any subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction, the same kind and amount of securities, cash or property as it would have been entitled to receive upon the occurrence of such Fundamental Transaction if it had been, immediately prior to such Fundamental Transaction, the holder of 1 Common Share (the “Alternate Consideration”). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of 1 Common Share in such Fundamental Transaction, and Borrower shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.

(4) Anti-dilution Adjustment. If at any time while this Note is outstanding, Borrower sells, grants, or otherwise makes a disposition of Common Shares, or sells, grants, or otherwise makes a disposition of other securities (or in the case of securities existing on the Issue Date, amends such securities) convertible into, exercisable for, or that would otherwise entitle any person or entity the right to acquire Common Shares, or announces its intention, or files any document with the SEC or other regulatory body that reflects its intention to do of any of the foregoing, at an effective price per share that is lower than the then Fixed Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive Issuance”) (it being agreed that if the holder of the Common Shares or other securities so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive Common Shares at an effective price per share that is lower than the Fixed Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance, and the Base Conversion Price shall then be adjusted to equal the lowest of such issuance price), then the Fixed Conversion Price shall be reduced to a price equal the Base Conversion Price as it may be adjusted as provided for above. Such adjustment shall be made whenever such Common Shares or other securities are issued. Notwithstanding the foregoing, no adjustment will be made under this Section 2.2(b)(4) in respect of an Exempt Issuance. For purposes of this Section 2.2(b)(4) an “Exempt Issuance” means an issuance of Common Shares or other securities convertible into or exercisable or exchangeable for Common Shares (i) to employees or directors of, or consultants or advisors to, Borrower or any of its Subsidiaries pursuant to a plan, agreement or arrangement approved by the Board of Directors of Borrower, (ii) to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction approved by the Board of Directors of Borrower, (iii) to suppliers or third party service providers in connection with the provision of goods or services pursuant to transactions approved by the Board of Directors of Borrower, (iv) pursuant to the acquisition of another corporation or other entity by Borrower by merger, purchase of substantially all of the assets or other reorganization or pursuant to a joint venture agreement, provided that such issuances are approved by the Board of Directors of Borrower, (v) to third parties in connection with collaboration, technology license, development, marketing or other similar agreements or strategic partnerships approved by the Board of Directors of Borrower, or (vi) shares with respect to which the Holder waives its anti-dilution rights granted hereby; provided, however, that any such issuance described in (iii) through (v) shall only be to a person (or to the equity holders of a person) which is, itself or through its Subsidiaries, an operating business, or an owner of an asset that is used in a business, that is synergistic with the business of Borrower and shall provide to Borrower additional benefits in addition to the investment of funds, and provided however, that none of (i) through (v) above shall include a transaction in which Borrower is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities. In the event of an issuance of securities involving multiple tranches or closings, any adjustment pursuant to this Section 2.2(b)(4) shall be calculated as if all such securities were issued upon distribution of the initial tranche. For the avoidance of doubt, in the event the Conversion Price has been adjusted pursuant to this Section 2.2(b)(4) and the Dilutive Issuance that triggered such adjustment does not occur, is not consummated, is unwound or is cancelled after the facts for any reason whatsoever, in no event shall the Conversion Price be readjusted to the Conversion Price that would have been in effect if such Dilutive Issuance had not occurred or been consummated.

(5) Notice to the Holder. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 2.2(b), Borrower shall within three (3) business days deliver to the Holder a notice setting forth the Fixed Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, provided that Borrower’s failure to timely provide the notice shall not affect the automatic adjustments contemplated hereby.

2.3 Authorized Shares. Borrower covenants that during the period the conversion right exists, Borrower will reserve from its authorized and unissued Common Shares a sufficient number of shares, free from preemptive rights, to provide for the issuance of Common Shares upon the full conversion of this Note. Borrower is required at all times to have authorized and reserved three (3) times the number of shares that is actually issuable upon full conversion of the Note (based on the Conversion Price of the Note in effect from time to time, which, if cannot be determined shall be estimated in good faith by Borrower) it being acknowledged and agreed by the parties that for the initial issuance of the Note, 12,500,000 shares of Common Shares is sufficient (the “Reserved Amount”). The Reserved Amount shall be increased or decreased from time to time in accordance with Borrower’s obligations hereunder. Borrower represents that upon issuance, such shares will be duly and validly issued, fully paid and non-assessable. In addition, if Borrower shall issue any securities or make any change to its capital structure which would change the number of Common Shares into which the Note shall be convertible at the then current Conversion Price, Borrower shall at the same time make proper provision so that thereafter there shall be a sufficient number of Common Shares authorized and reserved, free from preemptive rights, for conversion of the outstanding Note, including but not limited to authorizing additional shares or effectuating a reverse split. Borrower (i) acknowledges that it has irrevocably instructed its transfer agent by letter, a copy of which is attached hereto as Exhibit B to issue certificates for the Common Shares issuable upon conversion of this Note, and (ii) agrees that its issuance of this Note shall constitute full authority to its officers and agents who are charged with the duty of executing Common Share certificates to execute and issue the necessary certificates for Common Shares in accordance with the terms and conditions of this Note. Borrower further covenants that so long as any obligation under this Note remains outstanding, Borrower will not establish a reserve of its Common Shares for the benefit of any party other than the Holder, without prior approval in writing by Holder. Failure by Borrower to maintain the Reserved Amount, or the failure by Borrower to be engaged with a transfer agent and subject to the terms of an irrevocable instruction letter according to the terms herein, or the establishment of a reserve without prior approval as required above, will be considered an Event of Default under Section 4.1.2 of the Note.

2.4 Method of Conversion.

(a) Mechanics of Conversion. Subject to Section 2.1, this Note may be converted by the Holder in whole or in part, at any time from the date hereof, by (A) submitting to Borrower or its transfer agent, a Notice of Conversion (by facsimile, e-mail or other reasonable means of communication dispatched on the Conversion Date prior to 8:00 p.m., New York, New York time) and (B) subject to Section 2.4(b), surrendering this Note at the principal office of Borrower.

(b) Surrender of Note Upon Conversion. Notwithstanding anything to the contrary set forth herein, upon conversion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to Borrower unless the entire unpaid principal amount of this Note is so converted. The Holder and Borrower shall maintain records showing the principal amount so converted and the dates of such conversions or shall use such other method, reasonably satisfactory to the Holder and Borrower, so as not to require physical surrender of this Note upon each such conversion. In the event of any dispute or discrepancy, such records of Borrower shall, prima facie, be controlling and determinative in the absence of manifest error. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note represented by this Note may be less than the amount stated on the face hereof.

(c) Payment of Taxes. Borrower shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of Common Shares or other securities or property on conversion of this Note in a name other than that of the Holder (or in street name), and Borrower shall not be required to issue or deliver any such shares or other securities or property unless and until the person or persons (other than the Holder or the custodian in whose street name such shares are to be held for the Holder’s account) requesting the issuance thereof shall have paid to Borrower the amount of any such tax or shall have established to the satisfaction of Borrower that such tax has been paid.

(d) Delivery of Common Shares Upon Conversion. Upon receipt by Borrower from the Holder of a facsimile transmission or e-mail (or other reasonable means of communication) of a Notice of Conversion meeting the requirements for conversion as provided in this Section 2.4, Borrower shall issue and deliver to or cause to be issued and delivered to or upon the order of the Holder certificates for Common Shares issuable upon such conversion by the end of the second business day after such receipt (the “Deadline”) (and, solely in the case of conversion of the entire unpaid principal amount hereof, surrender of this Note) in accordance with the terms hereof. Failure to issue and deliver shares or cause to be issued and delivered shares by the Deadline as described above, will be considered an Event of Default under Section 4.1.2 of the Note.

(e) Obligation of Borrower to Deliver Common Shares. Upon receipt by Borrower of a Notice of Conversion, the Holder shall be deemed to be the holder of record of the Common Shares issuable upon such conversion, the outstanding principal amount and the amount of accrued and unpaid interest on this Note shall be reduced to reflect such conversion, and, unless Borrower defaults on its obligations under this Article II, all rights with respect to the portion of this Note being so converted shall forthwith terminate except the right to receive the Common Shares or other securities, cash or other assets, as herein provided, on such conversion. If the Holder shall have given a Notice of Conversion as provided herein, Borrower’s obligation to issue and deliver the certificates for Common Shares shall be absolute and unconditional, irrespective of the absence of any action by the Holder to enforce the same, any waiver or consent with respect to any provision thereof, the recovery of any judgment against any person or any action to enforce the same, any failure or delay in the enforcement of any other obligation of Borrower to the holder of record, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder of any obligation to Borrower, and irrespective of any other circumstance which might otherwise limit such obligation of Borrower to the Holder in connection with such conversion. The Conversion Date specified in the Notice of Conversion shall be the Conversion Date so long as the Notice of Conversion is received by Borrower before 8:00 p.m., New York, New York time, on such date.

(f) Delivery of Common Shares by Electronic Transfer. In lieu of delivering physical certificates representing the Common Shares issuable upon conversion, provided Borrower is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer (“FAST”) program, upon request of the Holder and its compliance with the provisions contained in Section 2.1 and in this Section 2.4, Borrower shall use its best efforts to cause its transfer agent to electronically transmit the Common Shares issuable upon conversion to the Holder by crediting the account of Holder’s Prime Broker with DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system. If the Borrower is not registered with DTC as of the Issue Date, the Borrower shall be required to register with DTC within thirty (30) days of the Issue Date, and the provisions of this paragraph shall apply after such registration. Failure to become DTC registered or maintain DTC eligibility as provided herein shall be an Event of Default under this Note.

(g) Failure to Deliver Common Shares Prior to Deadline. Without in any way limiting the Holder’s right to pursue other remedies, including actual damages and/or equitable relief, or other remedies provided to Holder herein, the parties agree that if Borrower causes the Common Shares issuable upon conversion of this Note to not be delivered by the Deadline (such undelivered shares referred to herein as the “Undelivered Shares”), Borrower shall pay to the Holder in cash, as liquidated damages and not as a penalty, the sum of: (i) the greater of (x) $1,000 per day for each day beyond the Deadline that Borrower fails to deliver such Common Shares, or (y) for each $1,000 of Undelivered Shares subject to such Conversion (valued based on the VWAP of the Common Stock on the date of the applicable Conversion Notice), $25 per Trading Day (increasing to $35 per Trading Day on the fifth Trading Day after such liquidated damages begin to accrue) for each Trading Day after Deadline until such Undelivered Shares are delivered or Holder rescinds such Conversion, and (ii) the product of the number of Undelivered Shares multiplied by the difference between the highest trade price and the lowest trade price during the period beginning on the date that such conversion was submitted, and the date on which the Shares are delivered to Holder’s Prime Broker and are available to be sold. Such cash amount shall, at the option of the Holder, either (A) be due and payable in cash within five (5) days after written notice from the Holder demanding payment, or (B) be automatically added to the principal amount of this Note, in which event interest shall accrue thereon in accordance with the terms of this Note and such additional principal amount shall be convertible into Common Shares in accordance with the terms of this Note. Borrower agrees that the right to convert is a valuable right to the Holder, and as such, Borrower will not take any actions to hamper, delay or prevent any Holder conversion of the Note. The damages resulting from such failure to deliver Undelivered Shares, or an attempt to frustrate or interference with Holder’s Conversion Right, are difficult if not impossible to qualify. Accordingly, the Borrower and the Holder acknowledge and agree that (i) the amount of loss or damages likely to be incurred as a result of a failure to deliver Undelivered Shares is incapable or is difficult to precisely estimate, (ii) the amounts specified in this Section 2.4(g) bear a reasonable relationship to, and are not plainly or grossly disproportionate to, the probable loss likely to be incurred in connection with such failure, and (iii) the Parties acknowledge that the liquidated damages provision contained in this Section 2.4(g) are justified.

(h) Right to Amend Notice of Conversion. While the Alternative Conversion Price is in effect, on or before the 1st Trading Day following the date of receipt of a Notice of Conversion, with respect to a conversion, if the applicable Conversion Price is less than the “conversion price” specified on such Notice of Conversion, the Holder may deliver an updated Notice of Conversion to the Company correcting the Conversion Price (and the aggregate Conversion Amount) as specified in such Notice of Conversion (provided, that if such updated Notice of Conversion is not delivered to the Company on or prior to 12:00 p.m. (local time in New York, NY) on the Trading Day immediately following the applicable Conversion Date, the Deadline shall be extended by one (1) Trading Day).

(i) Adjustment Due to Market Price. If at any time the Market Price, as determined on the date of each conversion, is less than the Conversion Price, then the outstanding principal amount of this Note shall be automatically increased immediately following each such conversion by the result of the Conversion Price minus the Market Price multiplied by the amount of shares of common stock being issued with respect to such conversion , and interest shall accrue thereon in accordance with the terms of this Note. “Market Price” shall mean the lowest trading price for the Common Stock during ten (10) Trading Days prior to the applicable date of conversion. For example, the Conversion Price is $0.50 and if the Market Price is $0.40 and the number of shares issued upon conversion is 10,000 shares, then the outstanding principal amount of this Note shall be increased by $1,000.00 ($0.50 - $0.40 = $0.10 multiplied by 10,000 = 1,000.00) immediately following such conversion.

2.5 Concerning the Common Shares. The Common Shares issuable upon conversion of this Note may not be sold or transferred unless (i) such shares are sold pursuant to an effective registration statement under the Act or (ii) Borrower or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or (iii) such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or (iv) such shares are transferred to an “affiliate” (as defined in Rule 144) of Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 2.5 and who is an Accredited Investor. Except as otherwise provided (and subject to the removal provisions set forth below), until such time as the Common Shares issuable upon conversion of this Note have been registered under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for Common Shares issuable upon conversion of this Note that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:

NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE 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 (WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER AND ACCEPTABLE TO THE COMPANY), IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS 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.

The legend set forth above shall be removed and Borrower shall issue to the Holder a new certificate therefore free of any transfer legend if (i) Borrower or its transfer agent shall have received an opinion of counsel, in form, substance and scope customary for opinions of counsel in comparable transactions, to the effect that a public sale or transfer of such Common Shares may be made without registration under the Act, which opinion shall be accepted by Borrower (which acceptance shall be subject to and conditioned on any requirements, if any, of the its transfer agent, the exchange on which Borrower is then trading or other applicable laws, rules or regulations) so that the sale or transfer is effected or (ii) in the case of the Common Shares issuable upon conversion of this Note, such security is registered for sale by the Holder under an effective registration statement filed under the Act or otherwise may be sold pursuant to Rule 144 without any restriction as to the number of securities as of a particular date that can then be immediately sold. In the event that Borrower does not accept the opinion of counsel provided by the Holder with respect to the transfer of Securities pursuant to an exemption from registration, such as Rule 144 or Regulation S, at the Deadline, it will be considered an Event of Default pursuant to Section 4.1.2 of the Note; provided that notwithstanding the foregoing, if Borrower is legally unable to accept such opinion as a result of any of Borrower’s transfer agent requirements, the requirements of the exchange on which Borrower is then traded, or other applicable laws, rules or regulations, Borrower’s non-acceptance shall be an Event of Default pursuant to Section 4.1.25.

2.6 Status as Shareholder. Upon submission of a Notice of Conversion by a Holder, (i) the shares covered thereby (other than the shares, if any, which cannot be issued because their issuance would exceed such Holder’s allocated portion of the Reserved Amount or Maximum Share Amount) shall be deemed converted into Common Shares and (ii) the Holder’s rights as a Holder of such converted portion of this Note shall cease and terminate, excepting only the right to receive certificates for such Common Shares and to any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by Borrower to comply with the terms of this Note. Notwithstanding the foregoing, if a Holder has not received certificates for all Common Shares prior to the tenth (10th) business day after the expiration of the Deadline with respect to a conversion of any portion of this Note for any reason, then (unless the Holder otherwise elects to retain its status as a holder of Common Shares by so notifying Borrower) the Holder shall regain the rights of a Holder of this Note with respect to such unconverted portions of this Note and Borrower shall, as soon as practicable, return such unconverted Note to the Holder or, if the Note has not been surrendered, adjust its records to reflect that such portion of this Note has not been converted. In all cases, the Holder shall retain all of its rights and remedies (including, without limitation, (i) the right to receive Conversion Default Payments pursuant to Section 2.4 to the extent required thereby for such Conversion Default and any subsequent Conversion Default and (ii) the right to have the Conversion Price with respect to subsequent conversions adjusted upon an Event of Default (if applicable), for Borrower’s failure to convert this Note.

ARTICLE III. RANKING, CERTAIN COVENANTS, AND POST CLOSING OBLIGATIONS

3.1 Distributions on Common Shares. So long as the Borrower shall have any obligation under this Note, the Borrower shall not without the Holder’s written consent (a) pay, declare or set apart for such payment, any dividend or other distribution (whether in cash, property or other securities) on the Common Shares (or other capital securities of the Borrower) other than dividends on Common Shares solely in the form of additional Common Shares or (b) directly or indirectly or through any Subsidiary make any other payment or distribution in respect of Common Shares (or other securities representing its capital) except for distributions that comply with Section 3.7 below.

3.2 Restrictions on Variable Rate Transactions. Unless approved by the Holder, while any Note is outstanding, Borrower and each Subsidiary shall not enter into an agreement or amend an existing agreement to effect any sale of securities involving, or convert any securities previously issued under, a Variable Rate Transaction. The term “Variable Rate Transaction” means a transaction in which Borrower or any Subsidiary (i) issues or sells any convertible securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of, or quotations for, the Common Shares at any time after the initial issuance of such convertible securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such convertible securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of Borrower or the Subsidiary, as the case may be, or the market for the Common Shares, or (ii) enters into any agreement (including, without limitation, an “equity line of credit” or an “at-the-market offering”) whereby Borrower or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights).  The Holder shall be entitled to obtain injunctive relief against Borrower and its Subsidiaries to preclude any issuance that does not comply with this Section 3.2, which remedy shall be in addition to any right to collect damages. Notwithstanding the foregoing, this provision shall not apply to that certain equity line of credit facility contemplated by the Borrower as of the date hereof.

3.3 Restrictions on Certain Other Transactions. So long as the Borrower shall have any obligation under this Note and unless approved in writing by the Holder (which such approval not to be unreasonably withheld), the Borrower shall not directly or indirectly: (a) change the nature of its business; (b) sell, divest, change the structure of any material assets of the Borrower or any Subsidiary other than in the ordinary course of business (c) accept Merchant-Cash-Advances in which it sells future receivables at a discount, any other factoring transactions, or similar financing instruments or financing transactions; (d) enter into a borrowing arrangement where the Borrower pays an effective APR greater than 20%; or (e) enter into a transaction structured in accordance with, based upon, or related or pursuant to, in whole or in part, Section 3(a)(10) of the Securities Act (“3(a)(10) Transaction”).

3.4 Restriction on Common Share Repurchases. So long as the Borrower shall have any obligation under this Note, Borrower shall not without the Holder’s written consent redeem, repurchase or otherwise acquire (whether for cash or in exchange for property or other securities or otherwise) in any one transaction or series of related transactions any Common Shares (or other securities representing its capital) of Borrower or any warrants, rights or options to purchase or acquire any such shares; except for the repurchase of shares at a nominal price in connection with rights under an agreement with an employee or consultant of the Borrower whose shares have been forfeited as a result of such employee or consultant’s ceasing to provide services to the Borrower.

3.5 Payments from Future Funding Sources. The Borrower shall pay to the Holder on an accelerated basis, any outstanding Principal Amount of the Note, along with all unpaid interest, and fees and penalties, if any (including but not limited to any prepayment premium under Section 1.5), from the sources of capital below, at the Holder’s discretion, it being acknowledged and agreed by Holder that Borrower shall have the right to make Bona Fide payments to vendors with Common Shares:

3.5.1 Future Financing Proceeds. One hundred percent (100%) of the net proceeds of any future financings by Borrower or any Subsidiary, whether debt or equity, or any other financing proceeds such as cash advances, royalties or earn-out payments; provided, however, that this provision is not applicable if the transaction generating the future financing proceeds has a specific use of proceeds requirement that such proceeds are to be used exclusively to purchase the assets or equity of an unaffiliated business in an arm’s length transaction or such proceeds are to be used exclusively to develop the existing assets of the Borrower and the proceeds are used accordingly. Notwithstanding the foregoing, with respect to net proceeds received by the Borrower from that certain equity line of credit facility contemplated by the Borrower as of the date hereof, thirty-three percent (33%) of such net proceeds shall be subject to this provision.

3.5.2 Other Future Receipts. One hundred percent (100%) of the net proceeds to the Borrower or Subsidiary resulting from the sale of any assets or securities (excluding the Company’s securities), of Borrower or any of its Subsidiaries, including but not limited to, the sale of any Subsidiary, the receipt in cash by Borrower or any of its Subsidiaries of any tax refunds, the sale of any tax credits, collections by Borrower or any of its Subsidiaries pursuant to any settlement or judgement, but not including sales of inventory of the Borrower or its Subsidiaries in the ordinary course of business.

3.6 Intentionally Omitted.

3.7 Ranking and Security. The obligations of the Borrower under this Note shall constitute a first priority security interest and rank senior with respect to any and all Indebtedness existing prior to or incurred as of or following the initial Issue Date. The obligations of the Borrower under this Note are secured pursuant to the Security and Pledge Agreement attached hereto. So long as the Borrower shall have any obligation under this Note, the Borrower shall not (directly or indirectly through any Subsidiary or affiliate) (i) pay down any existing Indebtedness without the Holder’s prior written consent, or (ii) incur or suffer to exist or guarantee any Indebtedness that is senior to or pari passu with (in priority of payment and performance) the Borrower’s obligations hereunder. As used herein, the term “Indebtedness” means (a) all indebtedness of the Borrower for borrowed money or for the deferred purchase price of property or services, including any type of letters of credit, but not including deferred purchase price obligations in place as of the Issue Date or obligations to trade creditors incurred in the ordinary course of business, (b) all obligations of the Borrower evidenced by notes, bonds, debentures or other similar instruments, (c) purchase money indebtedness hereafter incurred by the Borrower to finance the purchase of fixed or capital assets, including all capital lease obligations of the Borrower which do not exceed the purchase price of the assets funded, (d) all guarantee obligations of the Borrower in respect of obligations of the kind referred to in clauses (a) through (c) above that the Borrower would not be permitted to incur or enter into, and (e) all obligations of the kind referred to in clauses (a) through (d) above that the Borrower is not permitted to incur or enter into that are secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured and/or unsecured by) any lien or encumbrance on property (including accounts and contract rights) owned by the Borrower, whether or not the Borrower has assumed or become liable for the payment of such obligation. With respect to any Indebtedness that is a senior secured obligation of the Borrower, Borrower agrees to cause the holders of such Indebtedness to execute subordination agreements with respect to the Borrower’s obligations under this Note, and to deliver such subordination agreements to the Holder on or prior to the Issue Date. Notwithstanding the foregoing, the Borrower shall be permitted to pursue and close equipment financing, with such financing secured by first priority lien(s) against the equipment being financed and second priority lien(s) (behind the Holder’s security interest) against the Borrower's other assets.

3.8 Regulatory Reporting.

3.8.1 Borrower shall be required to be in compliance with the requirements of the Exchange Act, and be required to remain a fully reporting company under the SEC reporting requirements and remain subject to and fully compliant with, the annual and periodic reporting requirements of the Exchange Act (including but not limited to becoming current in its filings). Failure to remain a fully reporting company and subject to and compliant with the Exchange Act as described herein, (including but not limited to becoming delinquent in its filings), shall be an Event of Default (as defined below).

3.8.2 If the Borrower fails to remain current in its reporting obligations under the Exchange Act or to provide currently publicly available information in accordance with Rule 144(c) and such failure extends for a period of more than ten (10) Trading Days (the date on which such ten (10) Trading Day period is exceeded being referred to as the “Information Failure Event Date”), then in addition to any other rights the Holder may have hereunder or under applicable law, on each such Information Failure Event Date and on each monthly anniversary of each such Information Failure Event Date (if the applicable event shall not have been cured by such date) until the information failure is cured, Borrower shall pay to the Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to one percent (1%) of the Principal Amount of this Note. The partial liquidated damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an information failure (except in the case of the first Information Failure Event Date).

3.9 Opinion Letter.

3.9.1 Borrower shall be responsible for supplying an opinion letter from a duly admitted attorney, in a form acceptable to the Holder, the Borrower’s transfer agent, specific to the fact that Common Shares issued pursuant the Note, including the shares issued upon conversion of the Note, are either exempt from the registration requirements of the Securities Act pursuant to Rule 144 (so long as the requirements of Rule 144 are satisfied) or have been duly registered and permitted to be sold and transferred without restriction (so long as the shares have been duly registered and permitted to be sold and transferred without restriction). Failure to provide an opinion letter as described herein shall be an event of default pursuant to Section 4.1.2 of the Note.

3.9.2 Borrower shall be responsible for supplying an opinion letter from a duly admitted attorney, in a form acceptable to the Holder, that the transaction contemplated herein, as well as the execution of the Transaction Documents, have been duly authorized by the Borrower in accordance with its governing documents.

ARTICLE IV. EVENTS OF DEFAULT

4.1 It shall be considered an event of default if any of the following events listed in this Article IV (each, an “Event of Default”) shall occur:

4.1.1 Failure to Pay Principal or Interest. The Borrower fails to pay the principal hereof or interest thereon when due on this Note, whether at maturity, upon acceleration or otherwise.

4.1.2 Failure to Reserve or Deliver Shares. (a) Borrower fails to reserve a sufficient amount of Common Shares as required under the terms of this Note (including the requirements of Section 2.3 of this Note), fails to issue Common Shares to the Holder (or announces or threatens in writing that it will not honor its obligation to do so) upon exercise by the Holder of the conversion rights of the Holder in accordance with the terms of this Note, fails to transfer or cause its transfer agent to transfer (issue) (electronically or in certificated form) Common Shares issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, Borrower directs its transfer agent not to transfer or delays, impairs, and/or hinders its transfer agent in transferring (or issuing) (electronically or in certificated form) Common Shares to be issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note, or fails to remove (or directs its transfer agent not to remove or impairs, delays, and/or hinders its transfer agent from removing) any restrictive legend (or to withdraw any stop transfer instructions in respect thereof) on any Common Shares issued to the Holder upon conversion of or otherwise pursuant to this Note as and when required by this Note subject to regulations (or makes any written announcement, statement or threat that it does not intend to honor the obligations described in this paragraph), or fails to supply an opinion letter specific to the fact that Common Stock issued pursuant to conversion of the Note are exempt from Registration Requirements pursuant to Rule 144, and any such failure shall continue uncured (or any written announcement, statement or threat not to honor its obligations shall not be rescinded in writing) for one (1) business days after the Holder shall have delivered a Notice of Conversion. It is an obligation of Borrower to remain current in its obligations to its transfer agent. It shall be an event of default of this Note, if a conversion of this Note is delayed, hindered or frustrated due to a balance owed by Borrower to its transfer agent. If, at the option of the Holder, the Holder advances any funds to Borrower’s transfer agent in order to process a conversion, such advanced funds shall be paid by Borrower to the Holder, at the sole discretion of the Holder, either (A) in cash within five (5) business days after written notice from the Holder demanding payment, or (B) automatically added to the outstanding Principal Amount of the Note, in which event interest shall accrue thereon in accordance with the terms of this Note. (b) Borrower establishes a reserve of its Common Shares for the benefit of a party other than the Holder, without obtaining prior approval in writing by the Holder.

4.1.3 Breach of Covenants. Borrower, or the relevant related party, as the case may be, breaches any material covenant, post-closing obligation or other material term or condition contained in any of the Transaction Documents and breach continues for a period of thirty (30) days.

4.1.4 Breach of Representations and Warranties. Any representation or warranty of the Borrower made herein or in any of the other Transaction Documents, or in any statement or certificate given pursuant hereto or in connection herewith, shall be false or misleading in any material respect when made and the breach of which has (or with the passage of time will have) an adverse effect on the rights of the Holder with respect to this Note and the other Transaction Documents.

4.1.5 Judgments or Settlements. (i) Any money judgment, writ or similar process shall be entered or filed against Borrower or any subsidiary of Borrower or any of its property or other assets for more than $100,000, and shall remain unvacated, unbonded or unstayed for a period of thirty (30) days unless otherwise consented to by the Holder; or (ii) the settlement of any claim or litigation, creating an obligation on the Borrower in amount over $100,000 or where value of the underlying claim or dispute was at least $100,000.

4.1.6 Receiver or Trustee. Borrower or any subsidiary of Borrower shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for it or for a substantial part of its property or business, or such a receiver or trustee shall otherwise be appointed.

4.1.7 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings, voluntary or involuntary, for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against Borrower or any subsidiary of Borrower. With respect to any such proceedings that are involuntary, Borrower shall have a 60 day cure period in which to have such involuntary proceedings dismissed.

4.1.8 Change of Control or Liquidation. Any Change of Control of the Borrower, or the dissolution, liquidation, or winding up of Borrower or any substantial portion of its business. As used herein, a “Change of Control” shall be deemed to occur upon the consummation of any of the following events: (a) any person or persons acting together which would constitute a “group” for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (other than the Borrower or any subsidiary of the Borrower) shall beneficially own (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, at least 50% of the total voting power of all classes of capital stock of the Borrower entitled to vote generally in the election of the Board; (b) Current Directors (as herein defined) shall cease for any reason to constitute at least a majority of the members of the Board (for this purpose, a “Current Director” shall mean any member of the Board as of the date hereof and any successor of a Current Director whose election, or nomination for election by the Borrower's shareholders, was approved by at least a majority of the Current Directors then on the Board); (c) (i) the complete liquidation of the Borrower or (ii) the merger or consolidation of the Borrower, other than a merger or consolidation in which (x) the holders of the Common Shares of the Borrower immediately prior to the consolidation or merger have, directly or indirectly, at least a majority of the Common Shares of the continuing or surviving corporation immediately after such consolidation or merger or (y) the Board immediately prior to the merger or consolidation would, immediately after the merger or consolidation, constitute a majority of the board of directors of the continuing or surviving corporation, which liquidation, merger or consolidation has been approved by the shareholders of the Borrower; (d) the sale or other disposition (in one transaction or a series of transactions) of all or substantially all of the assets of the Borrower pursuant to an agreement (or agreements) which has (have) been approved by the shareholders of the Borrower; or (e) the appointment of a new chief executive officer.

4.1.9 Cessation of Operations. Any cessation of operations by the Borrower or the Borrower admits it is otherwise generally unable to pay its debts as such debts become due, provided, however, that any disclosure of the Borrower’s ability to continue as a “going concern” shall not be an admission that the Borrower cannot pay its debts as they become due.

4.1.10 Maintenance of Assets. The failure by Borrower to maintain any intellectual property rights, personal, real property or other assets which are deemed necessary to conduct its business (whether now or in the future), to the extent that such failure would result in a material adverse condition or material adverse change in or affecting the business operations, properties or financial condition of Borrower or any of its subsidiaries (a “Material Adverse Effect”).

4.1.11 Financial Statement Restatement. Borrower restates any financial statements for any date or period from two years prior to the Issue Date of this Note and until this Note is no longer outstanding, if the result of such restatement would, by comparison to the original financial statement, have constituted a material adverse effect on the rights of the Holder with respect to this Note.

4.1.12 Delisting of Common Shares. If at any time on or after the date hereof, the Borrower shall fail to maintain the listing or quotation of the Common Shares on a national securities exchange.

4.1.13 Failure to Comply with Regulatory Reporting Requirements. Borrower fails to be fully compliant with, or ceases to be subject to, the reporting requirements of the Exchange Act (including but not limited to becoming delinquent in its filings).

4.1.14 DTC “Chill”. The DTC places a “chill” (i.e. a restriction placed by DTC on one or more of DTC’s services, such as limiting a DTC participant’s ability to make a deposit or withdrawal of the security at DTC) on any of the Borrower’s securities and such restriction is not remedied within two (2) weeks.

4.1.15 DWAC Eligibility. In addition to the Event of Default in Section 4.1.21, the Common Stock is otherwise not eligible for trading through the DTC’s Fast Automated Securities Transfer or Deposit/Withdrawal at Custodian programs, or if the Borrower is not registered with DTC on the Issue Date, Borrower fails to become DTC registered within thirty (30) days of the Issue Date.

4.1.16 Inside Information. Any attempt by the Borrower or its officers, directors, and/or affiliates to transmit, convey, disclose, or any actual transmittal, conveyance, or disclosure by the Borrower or its officers, directors, and/or affiliates of, material non-public information concerning the Borrower, to the Holder or its successors and assigns, which is not immediately cured by Borrower’s filing of a Form 8-K pursuant to Regulation FD on that same date.

4.1.17 Reverse Splits. The Borrower effectuates a reverse split of its Common Shares without twenty (20) days prior written notice to the Holder.

4.1.18 Replacement of Transfer Agent. In the event that the Borrower proposes to replace its transfer agent, the Borrower fails to provide, prior to the effective date of such replacement, a fully executed Irrevocable Transfer Agent Instructions in a form as initially delivered pursuant to the Exchange Agreement (including but not limited to the provision to irrevocably reserve shares of Common Stock in the Reserved Amount) signed by the successor transfer agent to Borrower and the Borrower.

4.1.19 Intentionally omitted.

4.1.20 Certain Transactions. Borrower enters into certain transactions prohibited by Sections 3.2, 3.3, 3.4, 3.5, and 3.6 of this Agreement.

4.1.21 Executive or Officer Conduct. Any Executive or Officer of the Borrower is arrested for violating any law, rule, regulation, or cease-and-desist order, or is convicted of a criminal offense in a state of federal court (but not including traffic violations or similar offenses).

4.1.22 Failure to Execute Transaction Documents or Complete the Transaction. The failure of the Borrower to execute any of the Transaction Documents.

4.1.23 Failure of Security Interest. (a) Any material provision of the Security and Pledge Agreement 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 Borrower 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 Borrower or any Subsidiary or any governmental authority having jurisdiction over any of them, seeking to establish the invalidity or unenforceability thereof, or the Borrower or any Subsidiary shall deny in writing that it has any liability or obligation purported to be created under the Security and Pledge Agreement; (b) the Security and Pledge Agreement, 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 Holder on any collateral purported to be covered thereby.

4.1.24 Illegality. Any court of competent jurisdiction issues an order declaring this Note, any of the other Transaction Documents or any provision hereunder or thereunder to be illegal, as long as such declaration was not the result of an act of negligence by the Holder, exclusive of the execution of the Transaction Documents or the transactions and acts contemplated herein.

4.1.25 Cross-Default. Notwithstanding anything to the contrary contained in this Note or the other related or companion documents, a breach or default by the Borrower of any covenant or other term or condition contained in any of the other financial instrument, including but not limited to all promissory notes, currently issued, or hereafter issued, by the Borrower, to the Holder or any other third party (the “Other Agreements”), after the passage of all applicable notice and cure or grace periods, that results in a Material Adverse Effect shall, at the option of the Holder, be considered a default under this Note, in which event the Holder shall be entitled to apply all rights and remedies of the Holder under the terms of this Note by reason of a default under said Other Agreement or hereunder.

4.2 Remedies Upon Default. Upon the occurrence and continuation of any Event of Default (after the expiration of any applicable cure period), the Holder may exercise any one or more of the following rights and remedies, in addition to any other rights and remedies available at law, in equity, or under any Transaction Document:

4.2.1 Acceleration. The entire unpaid balance of this Note and all other Obligations shall, at the option of the Holder, become immediately due and payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower.

4.2.2 Default Premium. From and after the occurrence of an Event of Default, all amounts owing by the Borrower to the Holder under or in connection with this Note or any other Transaction Document (collectively, the “Obligations”) shall be increased to an amount equal to one hundred twenty five percent (125%) of the Obligations outstanding at the time such amount is determined, it being agreed that the Obligations include, without limitation, the outstanding Principal Amount, accrued and unpaid interest, Monitoring Fees (as defined below), enforcement costs, legal fees, expenses, indemnities, and any other fees, charges or amounts payable hereunder or thereunder, whether accruing before or after the occurrence of an Event of Default. The Borrower acknowledges and agrees that the default premium provided for herein constitutes liquidated damages and not a penalty, that the actual damages resulting from an Event of Default are difficult or impossible to ascertain with precision, and that such default premium represents a reasonable estimate of the damages likely to be incurred by the Holder as a result of such Event of Default.

4.2.3 Default Interest. From and after the occurrence of an Event of Default, all outstanding Obligations, whether or not accelerated, shall accrue interest at the rate equal to the lesser of twenty four percent (24%) per annum or the maximum legal amount permitted by law (the “Default Interest Rate”), until the same is paid in full, including following the entry of a judgment in favor of Holder.

4.2.4 Monitoring Fee. Upon the occurrence of an Event of Default, Borrower shall incur a monthly monitoring fee (“Monitoring Fee”) in the amount of Five Thousand Dollars ($5,000) per month commencing on the date in which the Event of Default occurs and continuing until the Event of Default is cured, payable to the Holders of this Note pro rata in accordance with their respective Original Principal Amounts. The Monitoring Fee is intended to compensate the Holder for internal costs, administrative burdens, and other non-legal expenses associated with monitoring the Borrower and managing the Holder’s rights and interests during the pendency of such Event of Default. For the avoidance of doubt, the Monitoring Fee shall not be deemed to include, or in any way limit or preclude, the Holder’s right to separately recover reasonable attorneys’ fees and legal costs pursuant to the terms of this Note or applicable law.

4.2.5 Inspection Rights. Upon the occurrence of an Event of Default (after the expiration of any applicable cure period), Holder to have right to inspect the books and records of the Borrower, at reasonable business hours, at Holder’s sole discretion.

4.3 Payment Notice. Notwithstanding anything to the contrary contained in this Note, upon the occurrence of an Event of Default specified in Article 4 of this Note (after the expiration of any applicable cure period), Borrower may not repay in cash any amount outstanding under this Note without the five (5) days written notice to the Holder.

4.4 Notice of Default. Borrower shall be required to provide written Notice to the Holder immediately upon becoming aware of the occurrence of any event that is either reasonably likely to have a Material Adverse Effect or that would reasonably be deemed an Event of Default (without regard to Borrower’s ability to cure such Event of Default, if applicable), provided however, that Borrower’s failure to timely provide such notice shall not prevent this Note being deemed in default.

ARTICLE V. MISCELLANEOUS

5.1 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 privileges. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.

5.2 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and shall be transmitted exclusively by electronic mail to the email addresses set forth below or to such other email address as such party shall have specified most recently by written notice in accordance with this Section. No notice delivered by mail, courier, overnight delivery service or any other method shall constitute effective notice hereunder. Any notice or other communication required or permitted to be given hereunder shall be deemed effective upon electronic mail delivery at the designated email address below (if delivered on a Business Day during normal business hours where such notice is to be received), or the first Business Day following such delivery (if delivered other than on a Business Day during normal business hours where such notice is to be received). The physical addresses set forth below are provided for identification purposes only.

If to the Borrower, to:

Functional Brands Inc.

6400 SW Rosewood Street Lake

Oswego OR 97035

Attn: Eric Gripentrog, CEO

e-mail: [email protected]

If to the Holder:

Address: ___________________

                 ___________________

Attn: ______________________

e-mail: _____________________

cc (which shall not constitute notice): [email protected]

5.3 Amendments. This Note and any provision hereof may only be amended by an instrument in writing signed by the Borrower and the Holder. The term “Note” and all reference thereto, as used throughout this instrument, shall mean this instrument as originally executed, or if later amended or supplemented, then as so amended or supplemented.

5.4 Assignability. This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to be the benefit of the Holder and its successors and assigns. Each transferee of this Note must be an “accredited investor” (as defined in Rule 501(a) of the 1933 Act).

5.5 Cost of Collection. If default is made in the payment of this Note, the Borrower shall pay the Holder hereof costs of collection, including attorneys’ fees. Such amounts spent by Holder shall be added to the Principal Amount of the Note at the time of such expenditure.

5.6 Governing Law & Agreement to Confidential Arbitration. This Note shall be governed by and construed in accordance with the laws of the State of Delaware without regard to principles of conflicts of laws. Notwithstanding anything to the contrary herein or any other document executed in connection herewith, any dispute, claim or controversy arising out of or relating to this Note, or the other Transaction Documents, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Note to arbitrate, shall be determined by arbitration administered by Mediation and Civil Arbitration, Inc. d/b/a RapidRuling (www.rapidruling.com) in accordance with its Commercial Arbitration Rules effective at the time a claim is made, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Arbitrators shall be appointed by RapidRuling and any hearing shall be held via video or telephone conference. The parties agree that no objection shall be taken to the decision, order or award of the tribunal following any such hearing on the basis that the hearing was held by video or telephone conference. In the event of any legal action (including arbitration) to enforce or interpret this Note, the non-prevailing Party shall pay (x) the attorneys’ fees and other costs and expenses (including expert witness fees) of the prevailing Party in such amount as may be determined, plus (y) reasonable attorneys’ fees incurred by the prevailing Party in enforcing, or on appeal from, a judgment in favor of the prevailing Party. In any arbitration, the arbitrator shall include any such award in the arbitration award. EACH PARTY HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY. Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Note or any other Transaction Documents either by (i) mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Note or by (ii) electronic service at the email addresses provided in the section 5.2 (or such other address as may be designated by notice in accordance with this Note), 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 other manner permitted by law. No claimed breach of contract or violation of law by Holder or any of its affiliates shall operate to extinguish the Borrower’s obligations under this Section.

Notwithstanding the foregoing, the request by any Party for specific performance and temporary, preliminary or permanent injunctive relief, whether prohibitive or mandatory, the appointment of a receiver, and the enforcement of security interests and other remedies with respect to the Collateral under the Security and Pledge Agreement or other Transaction Documents, shall not be subject to arbitration and shall be adjudicated only by the state and/or federal courts residing in Wilmington, Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts for such purposes, and waives and agrees not to assert in any such proceeding a claim that he or it is not personally subject to the courts referred to above, that the suit or action was brought in an inconvenient forum or that the venue of the suit or action is improper. The Borrower further acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Borrower acknowledges that the remedy at law for a breach of its obligations under this Note may be inadequate and agrees, in the event of a breach or threatened breach by the Borrower of the provisions of this Note, that the Holder shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to seek equitable relief, including without limitation temporary restraining orders, temporary and permanent injunctions, and specific performance, and such equitable relief may be sought without the necessity of showing economic loss and without the necessity of posting a bond or other security.

The Holder and the Borrower acknowledge and agree that the rights of Holder under this Note are of a specialized and unique character and that immediate and irreparable damage will result to Holder if the Borrower fails or refuses to perform his or its obligations under this Note or otherwise breaches this Note and, notwithstanding an election by Holder to seek a remedy at law, Holder may, in addition to the remedies at law described above, seek equitable relief, including without limitation temporary restraining orders, temporary and permanent injunctions, and specific performance, and such equitable relief may be sought without the necessity of posting a bond or other security. No claimed breach of contract or violation of law by Holder or any of its affiliates shall operate to extinguish the Borrower’s obligations under Section 5.6 hereof.

For the avoidance of doubt, the notice and service provisions of this Section 5.6 shall control with respect to the commencement and conduct of any arbitration or legal proceeding, notwithstanding Section 5.2 or any other notice provision in this Note or any Transaction Document.

5.7 Certain Amounts. Whenever pursuant to this Note the Borrower is required to pay an amount in excess of the outstanding principal amount (or the portion thereof required to be paid at that time) plus accrued and unpaid interest plus Default Interest on such interest, the Borrower and the Holder agree that the actual damages to the Holder from the receipt of cash payment on this Note may be difficult to determine and the amount to be so paid by the Borrower represents stipulated damages and not a penalty.

5.8 Remedies. The Borrower acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder, by vitiating the intent and purpose of the transaction contemplated hereby. Accordingly, the Borrower acknowledges that the remedy at law for a breach of its obligations under this Note will be inadequate and agrees, in the event of a breach or threatened breach by the Borrower of the provisions of this Note, that the Holder shall be entitled, in addition to all other available remedies at law or in equity, and in addition to the penalties assessable herein, to an injunction or injunctions restraining, preventing or curing any breach of this Note and to enforce specifically the terms and provisions thereof, without the necessity of showing economic loss and without any bond or other security being required.

5.9 Usury. To the extent it may lawfully do so, the Borrower hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any action or proceeding that may be brought by the Holder in order to enforce any right or remedy under this Note. Notwithstanding any provision to the contrary contained in this Note, it is expressly agreed and provided that the total liability of the Borrower under this Note for payments which under Delaware law are in the nature of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums which under Delaware law in the nature of interest that the Borrower may be obligated to pay under this Note exceed such Maximum Rate.  It is agreed that if the maximum contract rate of interest allowed by Delaware law and applicable to this Note is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to this Note from the effective date thereof forward, unless such application is precluded by applicable law.  If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Borrower to the Holder with respect to indebtedness evidenced by this Note, such excess shall be applied by the Holder to the unpaid principal balance of any such indebtedness or be refunded to the Borrower, the manner of handling such excess to be at the Holder’s election.

5.10 No Broker-Dealer Acknowledgement. Absent a final adjudication from a court of competent jurisdiction stating otherwise, so long as any obligation of Borrower under this Note or the other Transaction Documents is outstanding, the Borrower shall not state, claim, allege, or in any way assert to any person, institution, or entity, that Holder is currently, or ever has been, a broker-dealer under the Securities Exchange Act of 1934.

5.11 Opportunity to Consult with Counsel. The Borrower represents and acknowledges that it has been provided with the opportunity to discuss and review the terms of this Note and the other Transaction Documents with its counsel before signing it and that it is freely and voluntarily signing the Transaction Documents in exchange for the benefits provided herein. In light of this, the Borrower will not contest the validity of Transaction Documents and the transactions contemplated therein. The Borrower further represents and acknowledges that it has been provided a reasonable period of time within which to review the terms of the Transaction Documents.

5.12 Integration. This Note, along with the other Transaction Documents, constitute the entire agreement between the Parties and supersedes all prior negotiations, discussions, representations, or proposals, whether oral or written, unless expressly incorporated herein, related to the subject matter of the Agreement. Unless expressly provided otherwise herein, this Note may not be modified unless in writing signed by the duly authorized representatives of the Borrower and the Holder. If any provision or part thereof is found to be invalid, the remaining provisions will remain in full force and effect. Additionally, Borrower agrees acknowledges that each of the Transaction Documents are integral to the Note, and their execution by Borrower and the agreement by Borrower to be bound by the terms therein are a material condition to the Holders agreement to enter into the transaction contemplated under the Transaction Documents.

5.13 Adjustment for Stock Split. Notwithstanding anything herein to the contrary, all references in this Note to numbers of shares of securities of the Borrower and the prices thereof, shall be appropriately adjusted to reflect any stock split, reverse stock split or stock dividend or other similar change in such securities which may be made by the Borrower after the date of this Agreement.

5.14 Nasdaq Compliance.

5.14.1 Stockholder Approval Limitation. Notwithstanding anything to the contrary contained in this Note or any other Transaction Document, the Holder shall not be permitted to convert this Note or otherwise receive shares of Common Stock to the extent (but only to the extent) that such conversion or issuance would require stockholder approval pursuant to the rules or regulations of the applicable Trading Market, including Nasdaq Listing Rule 5635(d) (or any successor provision), unless and until such stockholder approval is obtained. Any purported conversion or issuance in excess of such limitation shall be deemed null and void ab initio and of no force or effect.

5.14.2 Deferred Conversion. To the extent any conversion of this Note is prohibited by the foregoing limitation, the Holder shall be entitled to convert the remaining portion of this Note promptly upon the receipt of the requisite stockholder approval, without any further action, consent, or agreement of the Borrower.

5.14.3 Obligation to Seek Approval; Event of Default. If stockholder approval is required pursuant to the foregoing provisions, the Borrower shall, at its sole cost and expense, obtain such stockholder approval within thirty (30) days following the date on which such approval is first required. The failure of the Borrower to obtain such stockholder approval within such thirty (30) day period shall constitute an Event of Default under this Note, without the requirement of any further notice or cure period.

[signature page to follow]

IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by its duly authorized officer this 9th day of March, 2026.

[Signature page to Note]

EXHIBIT A – FORM OF NOTICE OF CONVERSION

(See Attached)

EXHIBIT B – TRANSFER AGENT INSTRUCTION LETTER

(See Attached)

EXHIBIT C – SECURITY AND PLEDGE AGREEMENT

(See Attached)

Exhibit 10.1

EXCHANGE AND AMENDMENT AGREEMENT

This Exchange and Amendment Agreement (this “Agreement”) is entered into as of March 9, 2026 (the “Effective Date”), by and among Functional Brands Inc., a Delaware corporation (the “Company”), and each undersigned holder (each, a “Holder” and collectively, the “Holders”) of the Company’s (i) Series A Convertible Preferred Stock (the “Series A”) and/or (ii) Series B Convertible Preferred Stock (the “Series B”).

1. Recitals

1.1. WHEREAS, the Company has designated the Series A and the Series B pursuant to their respective certificates of designation, as each may have been amended and in effect as of the Effective Date (the “Series A Certificate” and “Series B Certificate,” and together, the “Existing Certificates”).

1.2. WHEREAS, the Company desires to designate a new series of preferred stock known as Series C Convertible Preferred Stock (the “Series C”) pursuant to a certificate of designation (the “Series C Certificate”).

1.3. WHEREAS, the Company desires, and the Holders desire to approve and consent, to (i) amend the Existing Certificates to permit the exchange contemplated hereby and (ii) effect exchanges of Series A and Series B into (a) Series C, (b) cash, (c) common stock, and (d) a senior secured convertible note, all as set forth herein.

1.4. WHEREAS, capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the applicable Existing Certificates, the Series C Certificate, or the Note (as defined below), as applicable.

2. Definitions

2.1. “Accrued Dividends” means, with respect to a share of Series A, all accrued and unpaid dividends (whether declared or accrued by operation of the applicable Existing Certificate) on such share through and including the Exchange Date.

2.2. “Alternate Conversion Price” means, as of any particular date of determination, a price per share of Common Stock equal to 85% of the lowest traded price of the Common Stock on the principal trading market during the ten (10) Trading Days immediately preceding such date of determination.

2.3. “Alternate Conversion Right” means the right of a Holder, exercisable at any time on or after the earlier of (a) the occurrence of an Event of Default and (b) the date that is twenty-four (24) months from the Initial Closing Date (the “Alternate Conversion Eligibility Date”), to convert all or any portion of (i) the then-outstanding stated value of the Series C and/or (ii) the then-outstanding principal amount of the Note into shares of Common Stock at the Alternate Conversion Price, subject to the Beneficial Ownership Limitation and the holdback mechanics set forth in Section 4.7. For the avoidance of doubt, upon and after the earlier of (x) an Event of Default and (y) the Alternate Conversion Eligibility Date, the Series C Fixed Conversion Right and the Note Fixed Conversion Right shall no longer be available, and conversions shall occur pursuant to this Alternate Conversion Right (and the related mechanics in the Series C Certificate and the Note, as applicable).

2.4. “Assigned Value” means, as applicable, the Series A Assigned Value or the Series B Assigned Value.

2.5. “Beneficial Ownership Limitation” means 4.99% of the Company’s outstanding shares of Common Stock immediately after giving effect to the issuance of Common Stock contemplated by this Agreement, calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder.

2.6. “Blocker Holdback Shares” means any portion of Common Stock otherwise issuable to a Holder under this Agreement (including in connection with Common Stock Consideration, and any shares issued as payment under the Note if applicable) that cannot be issued to such Holder at such time without causing such Holder (together with its affiliates) to exceed the Beneficial Ownership Limitation.

2.7. “Business Day” means any day other than a Saturday, Sunday, or day on which banks in New York, New York are authorized or required by law to close.

2.8. “Cash Consideration” means, with respect to each exchanged share of Series A or Series B, cash in an amount equal to 10.74% of the Assigned Value ($900,000) for such exchanged share, of which 50% shall be payable on the Exchange Date and the remainder shall be payable upon the effectiveness of the registration statement filed by the Company in connection with the contemplated equity line of credit, but in no event later than ninety (90) days following the Closing Date. In the event the Company has insufficient cash on hand to satisfy the full Closing payment, the Company shall pay such amount as is available, provided that the aggregate cash payment at Closing shall not be less than $250,000. Any shortfall between the amount actually paid at Closing and the full $450,000 due shall be payable to the Holders pro rata in six (6) equal monthly installments beginning on the Redemption Start Date. For the avoidance of doubt, this repayment obligation is separate from and in addition to any other Mandatory Redemption due under this Agreement.

2.9. “Closing Date” means, for purposes of this Agreement and the Series C Certificate, the Note, and the other Transaction Documents, the Initial Closing Date.

2.10. “Common Stock” means the Company’s common stock, par value $.00001 per share.

2.11. “Common Stock Consideration Amount” means, with respect to each exchanged share of Series A or Series B, an amount equal to 12.39% of the Remaining Stated Value of such exchanged share, determined as of the Exchange Date.

2.12. “Common Stock Consideration Shares” means the number of shares of Common Stock issuable to a Holder in an Exchange, equal to (a) the aggregate Common Stock Consideration Amount for the shares exchanged by such Holder on the Exchange Date divided by (b) the Common Stock Exchange Price.

2.13. “Common Stock Exchange Price” means the Market Price as of the Exchange Date.

2.14. “Conversion Right” means, as applicable, (a) the Series C Fixed Conversion Right and/or (b) the Note Fixed Conversion Right, in each case only during the Fixed Conversion Period.

2.15. “Daily Allocation” means, for each Participating Holder on any Trading Day, such Holder’s pro rata share of the Leak-Out Cap for such Trading Day, calculated based on such Holder’s Assigned Value (as determined on the applicable Exchange Date(s)) relative to the aggregate Assigned Value of all Participating Holders on such Trading Day.

2.16. “Daily Trading Volume” means, for any Trading Day, the aggregate number of shares of Common Stock traded on the principal trading market on such Trading Day.

2.17. “Equity Conditions” has the meaning set forth in the Series C Certificate of Designations (Exhibit C). The Equity Conditions are for the sole benefit of the Holders and may be waived by the applicable Holder, in whole or in part, at any time and from time to time, in such Holder’s sole and absolute discretion. Any such waiver shall be delivered in writing to the Company and may apply to one or more specific payment dates or to all future payment dates, as specified therein. The Company may not assert the non-satisfaction of the Equity Conditions for any purpose (including as a basis for not making a payment in shares), and only the applicable Holder shall be entitled to assert the non-satisfaction of any Equity Condition.

2.18. “Exchange Date” means the date on which the Company consummates an Exchange pursuant to this Agreement.

2.19. “Fixed Conversion Reference Price” means the closing price of the Common Stock on the principal trading market on the Trading Day immediately preceding the Exchange Date (or, if the Exchange Date is not a Trading Day, the most recent Trading Day prior thereto). For the avoidance of doubt, the Fixed Conversion Reference Price is determined once as of the Exchange Date and shall not be recalculated on any subsequent Conversion Date or other date.

2.20. “Series C Fixed Conversion Prices” means (a) the “Tier 1 Fixed Conversion Price” equal to $0.30, (b) the “Tier 2 Fixed Conversion Price” equal to $0.35, and (c) the “Tier 3 Fixed Conversion Price” equal to $0.41.

2.21. “Series C Tier Allocation” means, with respect to any conversion of Series C, an allocation of the stated value of Series C being converted such that (a) 50% of such stated value is converted at the Tier 1 Fixed Conversion Price, (b) 25% of such stated value is converted at the Tier 2 Fixed Conversion Price, and (c) 25% of such stated value is converted at the Tier 3 Fixed Conversion Price; provided that the Company and the Holder may agree in writing to apply such allocation on an aggregate basis across multiple conversion notices delivered on the same Trading Day.

2.22. “Series C Fixed Conversion Right” means the right of a Holder to convert all or any portion of the Series C (based on the stated value thereof) into shares of Common Stock at the Series C Fixed Conversion Prices, applied in accordance with the Series C Tier Allocation, at any time during the Fixed Conversion Period, without regard to any monthly or periodic amortization cap, subject to the Beneficial Ownership Limitation and the holdback mechanics set forth in Section 4.7.

2.23. “Note Fixed Conversion Right” means the right of a Holder to convert all or any portion of the outstanding principal amount of the Note into shares of Common Stock at the Note Fixed Conversion Price at any time during the Fixed Conversion Period, without regard to any monthly or periodic amortization cap, subject to the Beneficial Ownership Limitation and the holdback mechanics set forth in Section 4.7.

2.24. “Note Fixed Conversion Price” means a price per share of Common Stock equal to 120% of the closing price of the Common Stock on the principal trading market on the Trading Day immediately preceding the Exchange Date (or, if the Exchange Date is not a Trading Day, the most recent Trading Day prior thereto).

2.25. “Initial Closing Date” means the first Exchange Date on which any Exchange is consummated pursuant to this Agreement.

2.26. “Leak-Out Cap” means, for any Trading Day, an amount of shares equal to fifteen percent (15%) of the Daily Trading Volume for such Trading Day.

2.27. “Leak-Out Period” means the period commencing on the Initial Closing Date and continuing until the date on which all Common Stock Consideration Shares (including any Blocker Holdback Shares that are Common Stock Consideration Shares) have been issued pursuant to this Agreement.

2.28. “Market Price” has the meaning set forth in the Series C Certificate (Exhibit C) and the Note (Exhibit D).

2.29. “Minimum Trading Volume Requirement” means that the aggregate dollar trading volume of the Common Stock on the principal trading market over the twenty-one (21) trading days immediately preceding the applicable payment or redemption date equals or exceeds ten (10) times the dollar amount of the applicable amortization or redemption payment to be made in shares.

2.30. “Note Portion Amount” means, with respect to each exchanged share of Series A or Series B, an amount equal to 10% of the Assigned Value for such exchanged share.

2.31. “Note Portion Percentage” means 10%.

2.32. “Note Principal Amount” means, for each Exchange, the aggregate principal amount of the Note issued to the applicable Holder, equal to the aggregate Note Portion Amount for all shares exchanged by such Holder on the Exchange Date.

2.33. “Participating Holder” means, as of any Trading Day, each Holder that holds (i) outstanding Series C, (ii) an outstanding Note, or (iii) shares of Common Stock issued pursuant to this Agreement or upon conversion, amortization, or payment under the Series C or the Note.

2.34. “Remaining Stated Value” means, with respect to a share of Series A or Series B, the stated value then outstanding and unpaid (or unredeemed) for such share under the applicable Existing Certificate as of the Exchange Date.

2.35. “Series A Assigned Value” means, with respect to each share of Series A exchanged on an Exchange Date, an amount equal to 80% of the Remaining Stated Value of such share.

2.36. “Series B Assigned Value” means, with respect to each share of Series B exchanged on an Exchange Date, an amount equal to 100% of the Remaining Stated Value of such share.

2.37. “Series C Portion Percentage” means 72%.

2.38. “Series C Portion Amount” means, with respect to each exchanged share of Series A or Series B, an amount equal to 72% of the Assigned Value for such exchanged share.

2.39. “Series C Issuance Value” means the stated value per share of Series C (or other per share issuance value used for issuance mechanics) as set forth in the Series C Certificate.

2.40. “Senior Secured Convertible Note” or “Note” means the senior secured convertible promissory note to be issued by the Company to the Holder in connection with an Exchange, in substantially the form attached hereto as Exhibit D.

2.41. “Security Documents” means the security agreement(s), control agreement(s) (if any), and other collateral documents (if any) to be delivered to secure the Note, as contemplated by Exhibit D, each in form and substance reasonably acceptable to the Holder.

2.42. “Trading Day” means any day on which the Common Stock is traded on the principal trading market.

2.43. “Fixed Conversion Period” means the period commencing on the Exchange Date and ending on the earlier of (a) the occurrence of an Event of Default and (b) the Alternate Conversion Eligibility Date.

3. Amendments to Existing Certificates; Designation of Series C; Note Issuance

3.1. Series A Amendment. The Series A Required Holders hereby approve and consent to the amendment to the Series A Certificate substantially in the form attached hereto as Exhibit A (the “Series A Amendment”) and authorize the filing thereof.

3.2. Series B Amendment. The Series B Required Holders hereby approve and consent to the amendment to the Series B Certificate substantially in the form attached hereto as Exhibit B (the “Series B Amendment”) and authorize the filing thereof.

3.3. Series C Designation and Reservation. The Company shall file the Series C Certificate substantially in the form attached hereto as Exhibit C, and shall authorize and reserve a sufficient number of shares of Series C and Common Stock to complete the Exchanges contemplated by this Agreement (including any Common Stock issuable as payment under the Note, if applicable).

3.4. Note Authorization. The Company shall authorize the issuance of the Note and the execution and delivery of the Security Documents in connection therewith.

3.5. Filing and Effectiveness. The Company shall file the Series A Amendment, Series B Amendment, and the Series C Certificate (as applicable). The effectiveness of such filings shall be as set forth therein.

4. Exchange Right; Exchange Mechanics; Consideration

4.1. Company Option to Exchange. Subject to the terms of this Agreement and the amended Existing Certificates, the Company may, in its sole discretion, elect to effect an exchange (an “Exchange”) of all or any portion of the outstanding shares of Series A and/or Series B held by any Holder.

4.2. Exchange Consideration. For each share of Series A or Series B exchanged on an Exchange Date, the applicable Holder shall receive all of the following, unless otherwise agreed by each holder:

4.2.1. Series C Consideration. A number of shares of Series C having an aggregate issuance value equal to the Series C Portion Amount for such exchanged share (the “Series C Consideration”).

4.2.2. Senior Secured Convertible Note. A Note with a principal amount equal to the Note Portion Amount for such exchanged share; provided that the Note issued in an Exchange shall have an aggregate principal amount equal to the Holder’s Note Principal Amount.

4.2.3. Cash Consideration. The Cash Consideration, as defined in Section 2.11 above.

4.2.4. Common Stock Consideration. The Common Stock Consideration Shares issuable for such exchanged share, subject to the Beneficial Ownership Limitation and holdback mechanics in Section 4.7.

4.2.5. Payment of Series A Accrued Dividends. With respect to each share of Series A exchanged on an Exchange Date, the Company shall pay to the applicable Holder, in cash, an amount equal to all Accrued Dividends on such share. Such payment shall be made on the Exchange Date (or as soon as practicable thereafter, but in any event within three (3) Business Days), by wire transfer of immediately available funds to an account designated in writing by the applicable Holder. For the avoidance of doubt, this payment obligation applies only to shares of Series A and not to shares of Series B.

4.3. Calculation of Series C Shares. The number of shares of Series C issuable to a Holder for an Exchange shall be calculated as follows:

4.3.1. Series C Shares equals (Aggregate Series C Portion Amount for all shares exchanged by such Holder on the Exchange Date) divided by the Series C Issuance Value.

4.3.2. Fractional Shares. Fractional shares of Series C shall be rounded to the nearest whole share.

4.4. Timing of Delivery and Payment.

4.4.1. Series C Issuance. The Series C Consideration shall be issued and delivered to the applicable Holder on the Exchange Date (or as soon as practicable thereafter, but in any event within five (5) Business Days).

4.4.2. Note Issuance and Security. The Note shall be executed and delivered to the applicable Holder on the Exchange Date (or as soon as practicable thereafter, but in any event within five (5) Business Days). The Company shall deliver executed Security Documents and take the steps required to perfect the security interest contemplated thereby (including UCC filings), in each case on the Exchange Date (or within five (5) Business Days thereafter).

4.4.3. Cash Payment. The Cash Consideration shall be paid on the Exchange Date (or as soon as practicable thereafter, but in any event within three (3) Business Days), by wire transfer of immediately available funds to an account designated in writing by the applicable Holder.

4.4.4. Common Stock Issuance. The Common Stock Consideration Shares issuable without violating the Beneficial Ownership Limitation shall be issued on the Exchange Date (or as soon as practicable thereafter, but in any event within three (3) Business Days). Any Blocker Holdback Shares shall be issued in accordance with Section 4.7.

4.5. Surrender; Cancellation.

4.5.1. As a condition to receiving the Exchange Consideration, each participating Holder shall surrender (or cause to be surrendered) the certificates (if any) representing the shares being exchanged, or provide customary affidavits of loss and indemnities if certificates are lost, in each case in accordance with reasonable procedures of the Company and its transfer agent.

4.5.2. Upon issuance of the Series C Consideration, delivery of the Note, issuance of the applicable Common Stock Consideration Shares (subject to the blocker), and payment of the Cash Consideration, the exchanged shares of Series A and/or Series B shall be cancelled and shall no longer be outstanding, and all rights with respect to such exchanged shares (including any further dividends, liquidation preference, redemption rights, and voting rights) shall cease.

4.6. No Setoff. The Company’s obligations to issue Series C, deliver the Note, issue Common Stock, and pay Cash Consideration shall be made without setoff, counterclaim, or withholding, except as required by applicable law (including tax withholding).

4.7. Beneficial Ownership Limitation; 4.99% Blocker Mechanics.

4.7.1. Issuance Cap. Notwithstanding anything to the contrary in this Agreement, the Company shall not issue to any Holder any shares of Common Stock pursuant to this Agreement (including Common Stock Consideration and any shares issued as payment under the Note, if applicable) to the extent that, after giving effect to such issuance, such Holder (together with its affiliates) would beneficially own in excess of the Beneficial Ownership Limitation.

4.7.2. Automatic Reduction. If shares of Common Stock otherwise issuable to a Holder would cause such Holder to exceed the Beneficial Ownership Limitation, then the number of shares issuable at such time shall be automatically reduced to the maximum number of shares that may be issued without exceeding the Beneficial Ownership Limitation, and the remaining shares shall be deemed Blocker Holdback Shares.

4.7.3. Subsequent Issuance of Holdback Shares. At any time after the Exchange Date, upon written notice from a Holder to the Company, the Company shall issue to such Holder such number of Blocker Holdback Shares as requested by such Holder, up to the maximum number of shares that may then be issued without causing such Holder to exceed the Beneficial Ownership Limitation.

4.7.4. No Cash in Lieu. Blocker Holdback Shares shall remain issuable in accordance with this Section 4.7, and shall not be substituted with cash or any other consideration, unless otherwise agreed in writing by the Company and the applicable Holder.

4.7.5. Holder Information. Each Holder shall provide such information as the Company may reasonably request to confirm compliance with the Beneficial Ownership Limitation, provided that the Company may rely on a Holder’s written representation regarding its beneficial ownership absent manifest error.

4.8. No Waiver of Remaining Rights Until Exchange. Until an Exchange is consummated with respect to a particular share, nothing in this Agreement alters the rights of such share under the applicable Existing Certificate.

4.9. Series C and Note Terms Control for Conversion, Amortization, and Equity Conditions; No Conflict. Each Holder acknowledges and agrees that (a) the Series C issued as Series C Consideration shall be governed by the Series C Certificate, including the fixed conversion right at the Fixed Conversion Price during the Fixed Conversion Period, the alternate conversion right at the Alternate Conversion Price upon and after the earlier of an Event of Default and the Alternate Conversion Eligibility Date, the amortization and cash-or-shares payment mechanics, and the Equity Conditions (including the Minimum Trading Volume Requirement) set forth in Exhibit C, and (b) the Note shall be governed by its terms, including the fixed conversion right at the Fixed Conversion Price during the Fixed Conversion Period, the alternate conversion right at the Alternate Conversion Price upon and after the earlier of an Event of Default and the Alternate Conversion Eligibility Date, the amortization and cash-or-shares payment mechanics, and the Equity Conditions set forth in Exhibit C and the Security Documents, and (c) nothing in this Agreement is intended to modify, limit, or contradict the Series C Certificate or the Note with respect to the conversion rights, timing, procedures, Equity Conditions, or forms of payment for any conversion, amortization, redemption, or repayment.

4.10. Leak-Out Limitation.

4.10.1. Sales Restriction. Beginning on the Initial Closing Date and continuing throughout the Leak-Out Period, each Holder covenants and agrees that (i) no Holder shall sell any shares of Common Stock in the open market prior to the record date for the Company’s next annual or special meeting of shareholders (the “Shareholder Meeting Record Date”), and (ii) after the Shareholder Meeting Record Date, the aggregate number of shares of Common Stock sold by all Participating Holders in the open market on any Trading Day shall not exceed the Leak-Out Cap for such Trading Day. For purposes of this Section 4.10, “sold in the open market” means any sale, transfer, or disposition of Common Stock through a broker-dealer on the principal trading market or any other public trading market, but excludes (i) transfers by gift, devise, or operation of law that do not involve a sale for value, (ii) pledges or grants of security interests, and (iii) private negotiated transfers not executed through a trading market.

4.10.2. Daily Allocation. The Leak-Out Cap for each Trading Day shall be allocated among the Participating Holders on a pro rata basis according to each Participating Holder’s Assigned Value (as determined on the applicable Exchange Date(s)) relative to the aggregate Assigned Value of all Participating Holders on such Trading Day (each such allocation, the Participating Holder’s “Daily Allocation” for such Trading Day), as set forth on Schedule A attached hereto (which Schedule A also sets forth the Exchange Consideration allocable to each Holder). Each Holder shall be responsible for compliance with its own Daily Allocation.

4.10.3. Reallocation. If any Holder is not a Participating Holder for a particular Trading Day (because such Holder holds no outstanding Series C, no outstanding Note, and no shares of Common Stock issued pursuant to this Agreement or upon conversion, amortization, or payment under the Series C or the Note), then such Holder’s would-be Daily Allocation for such Trading Day shall be reallocated to the remaining Participating Holders for such Trading Day on a pro rata basis using the methodology described in Section 4.10.2.

4.10.4. Scope of Leak-Out Limitation. The Leak-Out Limitation applies only to Common Stock Consideration Shares.

5. Holder Consents; Further Assurances

5.1. Consents and Approvals. Each Holder hereby (a) consents to and approves the Series A Amendment and/or Series B Amendment, as applicable, (b) agrees that this Agreement may serve as a written consent of such Holder for purposes of the Existing Certificates and applicable law, and (c) agrees to execute and deliver any additional signature pages, consents, letters of transmittal, and instruments reasonably requested to carry out the transactions contemplated hereby.

5.2. Further Assurances. Each party shall execute and deliver such additional documents and take such additional actions as may be reasonably necessary to effect the intent of this Agreement.

6. Representations and Warranties

6.1. By Each Holder. Each Holder represents and warrants to the Company that:

6.1.1. It is the sole beneficial owner of the shares of Series A and/or Series B set forth opposite such Holder’s name on Schedule A attached hereto.

6.1.2. It has full power and authority to enter into this Agreement and to perform its obligations hereunder.

6.1.3. This Agreement constitutes a legal, valid, and binding obligation of such Holder, enforceable against such Holder in accordance with its terms, subject to customary bankruptcy and equitable principles.

6.1.4. Its shares are held free and clear of liens (other than restrictions under applicable securities laws).

6.2. By the Company. The Company represents and warrants to each Holder that:

6.2.1. It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation.

6.2.2. It has full power and authority to enter into this Agreement and consummate the transactions contemplated hereby, subject to the filing of the Series A Amendment, Series B Amendment, and the Series C Certificate (as applicable), and the authorization of the Note and Security Documents.

6.2.3. The execution and delivery of this Agreement have been duly authorized by all necessary corporate action.

6.2.4. Upon issuance, the Series C shares and Common Stock issued hereunder will be duly authorized and validly issued, fully paid and nonassessable, subject to applicable law and any legends required by securities laws.

7. Conditions

7.1. Conditions to Company Obligations. The Company’s obligation to consummate any Exchange may be conditioned upon:

7.1.1. Receipt of executed signature pages (and any required transmittal documents) from participating Holders.

7.1.2. Effectiveness of the Series A Amendment and/or Series B Amendment (as applicable) and the Series C Certificate.

7.1.3. Execution and delivery of the Note and Security Documents in form and substance reasonably acceptable to the Holder.

7.2. Conditions to Holder Obligations. Each participating Holder’s obligation to consummate any Exchange may be conditioned upon:

7.2.1. Effectiveness of the applicable amendments and the Series C Certificate.

7.2.2. Issuance of the Series C Consideration, delivery of the Note (with Security Documents), issuance of the Common Stock Consideration Shares subject to the blocker, and payment of the Cash Consideration in accordance with this Agreement.

8. Miscellaneous

8.1. Notices. Notices shall be given in accordance with the Existing Certificates; provided that if the Existing Certificates do not specify a notice procedure, then notices under this Agreement shall be in writing and delivered by (a) email (with confirmation of transmission), (b) nationally recognized overnight courier, or (c) personal delivery, in each case to the addresses on the signature pages (or such other address as a party may designate by notice).

8.2. Amendment. This Agreement may be amended only by a written instrument executed by the Company and Holders representing the requisite approval thresholds under the Existing Certificates.

8.3. Fee Reimbursement. Immediately upon execution of this Agreement, the Company shall pay to Leonite Fund I, LP (“Leonite”), $20,000 by wire transfer of immediately available funds pursuant to wire instructions provided by Leonite, as reimbursement of legal fees and expenses incurred by Leonite in connection with the drafting, negotiation, execution and delivery of this Agreement and the other documents entered into in connection herewith and the consummation of the transactions contemplated hereby and thereby.

8.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws principles.

8.5. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic signatures shall be effective.

8.6. Entire Agreement. This Agreement, together with the exhibits hereto, constitutes the entire agreement among the parties regarding the subject matter hereof and supersedes all prior discussions and agreements on such subject matter.

8.7. Rule 144; No New Consideration. Each party hereby acknowledges and agrees that (a) the Series C, the Note, and any shares of Common Stock issued pursuant to this Agreement (including the Common Stock Consideration Shares and any shares issued upon conversion, amortization, or payment under the Series C or the Note) are being issued solely in exchange for existing securities of the Company (namely, the Series A and/or Series B) and that no Holder is providing any new consideration in connection with such exchange; (b) for purposes of Rule 144 promulgated under the Securities Act, and specifically Rule 144(d)(3)(ii) thereunder, the holding period of the Series C, the Note, and such shares of Common Stock shall include and be calculated from the date that the Holder (or any prior holder from whom the holding period may be included) acquired the Series A and/or Series B being exchanged hereunder; and (c) the Company shall not, and hereby covenants that it will not, take any position (whether in any filing with the Securities and Exchange Commission, in any legal proceeding, in any communication with any Holder or any broker-dealer, in any opinion of counsel, or otherwise) that is contrary to or inconsistent with the acknowledgments set forth in clauses (a) and (b) above.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have executed this Exchange and Amendment Agreement as of the date first written above.

SCHEDULE A

Exchange Consideration and Leak-Out Allocations

Note: Series A stated values are exchanged at 80% (Assigned Value); Series B stated values are exchanged at 100% (Assigned Value). Leak-Out percentages (Daily Allocation %) are calculated based on each Holder’s Assigned Value as a proportion of the aggregate Assigned Value of all Holders. Cash amounts are rounded to the nearest dollar. Common Stock Consideration Shares are subject to adjustment for the Beneficial Ownership Limitation and Blocker Holdback Shares mechanics set forth in Section 4.7 of the Agreement.

EXHIBIT A

Series A Amendment to Certificate of Designation

AMENDMENT NO. [●] TO

CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS

OF SERIES A CONVERTIBLE PREFERRED STOCK

OF FUNCTIONAL BRANDS INC.

(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)

Functional Brands Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), does hereby certify that:

WHEREAS, the Company has previously filed a Certificate of Designation of Series A Convertible Preferred Stock with the Secretary of State of the State of Delaware (as amended prior to the date hereof, the “Series A Certificate”), establishing and designating [●] shares of Series A Convertible Preferred Stock, par value $[●] per share (the “Series A Preferred Stock”);

WHEREAS, the Company desires to amend the Series A Certificate to (i) permit the exchange of shares of Series A Preferred Stock for shares of a newly designated Series C Convertible Preferred Stock, a Senior Secured Convertible Note, cash, and shares of Common Stock, all as contemplated by that certain Exchange and Amendment Agreement, dated as of March 9, 2026 (the “Exchange Agreement”), and (ii) make such other amendments to the Series A Certificate as set forth herein;

WHEREAS, pursuant to the Series A Certificate, the approval of the holders of at least [●]% of the outstanding shares of Series A Preferred Stock (the “Series A Required Holders”) is required to amend the Series A Certificate;

WHEREAS, the Series A Required Holders have approved and consented to this amendment pursuant to the Exchange Agreement; and

WHEREAS, the Board of Directors of the Company has duly adopted resolutions authorizing the filing of this amendment.

NOW, THEREFORE, BE IT RESOLVED, that the Series A Certificate is hereby amended as follows:

1. Exchange Authorization. A new Section [●] is hereby added to the Series A Certificate as follows:

“Exchange of Series A Preferred Stock. Notwithstanding anything to the contrary contained in this Certificate of Designation, the Company may, in its sole discretion and pursuant to the terms of that certain Exchange and Amendment Agreement, dated as of March 9, 2026, by and among the Company and the holders party thereto (the “Exchange Agreement”), effect one or more exchanges (each, an “Exchange”) of all or any portion of the outstanding shares of Series A Preferred Stock held by the holders party to the Exchange Agreement, in exchange for (a) shares of Series C Convertible Preferred Stock, (b) a Senior Secured Convertible Note, (c) cash, and (d) shares of Common Stock (collectively, the “Exchange Consideration”), in each case in the amounts and on the terms set forth in the Exchange Agreement. The Series A Assigned Value, the allocation of Exchange Consideration, and all other terms of each Exchange shall be as set forth in the Exchange Agreement. Upon the consummation of any Exchange, the shares of Series A Preferred Stock so exchanged shall be automatically cancelled and retired and shall no longer be outstanding, and all rights with respect to such shares (including, without limitation, any further dividends, liquidation preference, redemption rights, conversion rights, and voting rights) shall cease. The cancellation and retirement of shares pursuant to an Exchange shall not require the payment of any additional consideration by the Company beyond the Exchange Consideration. For the avoidance of doubt, the Exchange contemplated hereby shall not constitute a ‘redemption’ or ‘conversion’ within the meaning of any other provision of this Certificate of Designation, and no consent, approval, notice, or other action by or to any holder shall be required in connection with an Exchange other than as set forth in the Exchange Agreement.”

2. Waiver of Restrictions; Conflicting Provisions. To the extent that any provision of the Series A Certificate (including, without limitation, any restriction on transfer, any limitation on the issuance of additional securities by the Company, any anti-dilution adjustment, any prohibition on redemption or prepayment, any required consent or approval, or any other covenant, condition, or restriction) would prohibit, restrict, limit, conflict with, or otherwise be inconsistent with the consummation of the transactions contemplated by the Exchange Agreement (including, without limitation, (a) the exchange of shares of Series A Preferred Stock for Exchange Consideration, (b) the designation and issuance of Series C Convertible Preferred Stock, (c) the issuance of the Senior Secured Convertible Note, (d) the issuance of shares of Common Stock as Exchange Consideration or upon conversion of the Series C Convertible Preferred Stock or the Note, (e) the granting of a security interest in the Company’s assets to secure the Note, or (f) the filing of the Series C Certificate of Designation), such provision is hereby amended, waived, and rendered inoperative solely to the extent necessary to permit the consummation of the transactions contemplated by the Exchange Agreement. This amendment shall not constitute a waiver or amendment of any provision of the Series A Certificate for any purpose other than the transactions contemplated by the Exchange Agreement.

3. No Anti-Dilution Adjustment. The issuance of shares of Series C Convertible Preferred Stock, the issuance of shares of Common Stock (whether as Exchange Consideration, upon conversion of the Series C Convertible Preferred Stock, upon conversion of the Senior Secured Convertible Note, or upon amortization, redemption, or repayment thereof), and the issuance of the Senior Secured Convertible Note, in each case pursuant to or in connection with the Exchange Agreement, shall not trigger any anti-dilution adjustment, price protection, or similar provision under the Series A Certificate with respect to any shares of Series A Preferred Stock that remain outstanding following any Exchange.

4. Senior Indebtedness. The holders of Series A Preferred Stock hereby acknowledge and consent that the Senior Secured Convertible Note issued pursuant to the Exchange Agreement shall constitute senior indebtedness of the Company, secured by a first priority security interest in the Company’s assets as set forth in the Security Documents (as defined in the Exchange Agreement). The holders of Series A Preferred Stock hereby waive any right to object to, or receive notice of, the granting of such security interest, and agree that the Series A Preferred Stock shall rank junior to the Note in right of payment and with respect to claims on the Company’s assets.

5. Reservation of Shares. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock a sufficient number of shares to effect the issuance of Common Stock as Exchange Consideration and upon conversion and amortization of the Series C Convertible Preferred Stock and the Senior Secured Convertible Note issued pursuant to the Exchange Agreement.

6. Ratification. Except as expressly amended hereby, the Series A Certificate shall remain in full force and effect and is hereby ratified and confirmed in all respects. In the event of any conflict between the provisions of this amendment and the provisions of the Series A Certificate as in effect prior to this amendment, the provisions of this amendment shall control. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Series A Certificate or the Exchange Agreement, as applicable.

7. Effectiveness. This amendment shall become effective upon its filing with the Secretary of State of the State of Delaware.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its duly authorized officer as of March 9, 2026.

FUNCTIONAL BRANDS INC.

EXHIBIT B

Series B Amendment to Certificate of Designation

AMENDMENT NO. [●] TO

CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS

OF SERIES B CONVERTIBLE PREFERRED STOCK

OF FUNCTIONAL BRANDS INC.

(Pursuant to Section 242 of the General Corporation Law of the State of Delaware)

Functional Brands Inc., a corporation organized and existing under the laws of the State of Delaware (the “Company”), does hereby certify that:

WHEREAS, the Company has previously filed a Certificate of Designation of Series B Convertible Preferred Stock with the Secretary of State of the State of Delaware (as amended prior to the date hereof, the “Series B Certificate”), establishing and designating [●] shares of Series B Convertible Preferred Stock, par value $[●] per share (the “Series B Preferred Stock”);

WHEREAS, the Company desires to amend the Series B Certificate to (i) permit the exchange of shares of Series B Preferred Stock for shares of a newly designated Series C Convertible Preferred Stock, a Senior Secured Convertible Note, cash, and shares of Common Stock, all as contemplated by that certain Exchange and Amendment Agreement, dated as of March 9, 2026 (the “Exchange Agreement”), and (ii) make such other amendments to the Series B Certificate as set forth herein;

WHEREAS, pursuant to the Series B Certificate, the approval of the holders of at least [●]% of the outstanding shares of Series B Preferred Stock (the “Series B Required Holders”) is required to amend the Series B Certificate;

WHEREAS, the Series B Required Holders have approved and consented to this amendment pursuant to the Exchange Agreement; and

WHEREAS, the Board of Directors of the Company has duly adopted resolutions authorizing the filing of this amendment.

NOW, THEREFORE, BE IT RESOLVED, that the Series B Certificate is hereby amended as follows:

1. Exchange Authorization. A new Section [●] is hereby added to the Series B Certificate as follows:

“Exchange of Series B Preferred Stock. Notwithstanding anything to the contrary contained in this Certificate of Designation, the Company may, in its sole discretion and pursuant to the terms of that certain Exchange and Amendment Agreement, dated as of March 9, 2026, by and among the Company and the holders party thereto (the “Exchange Agreement”), effect one or more exchanges (each, an “Exchange”) of all or any portion of the outstanding shares of Series B Preferred Stock held by the holders party to the Exchange Agreement, in exchange for (a) shares of Series C Convertible Preferred Stock, (b) a Senior Secured Convertible Note, (c) cash, and (d) shares of Common Stock (collectively, the “Exchange Consideration”), in each case in the amounts and on the terms set forth in the Exchange Agreement. The Series B Assigned Value, the allocation of Exchange Consideration, and all other terms of each Exchange shall be as set forth in the Exchange Agreement. Upon the consummation of any Exchange, the shares of Series B Preferred Stock so exchanged shall be automatically cancelled and retired and shall no longer be outstanding, and all rights with respect to such shares (including, without limitation, any further dividends, liquidation preference, redemption rights, conversion rights, and voting rights) shall cease. The cancellation and retirement of shares pursuant to an Exchange shall not require the payment of any additional consideration by the Company beyond the Exchange Consideration. For the avoidance of doubt, the Exchange contemplated hereby shall not constitute a ‘redemption’ or ‘conversion’ within the meaning of any other provision of this Certificate of Designation, and no consent, approval, notice, or other action by or to any holder shall be required in connection with an Exchange other than as set forth in the Exchange Agreement.”

2. Waiver of Restrictions; Conflicting Provisions. To the extent that any provision of the Series B Certificate (including, without limitation, any restriction on transfer, any limitation on the issuance of additional securities by the Company, any anti-dilution adjustment, any prohibition on redemption or prepayment, any required consent or approval, or any other covenant, condition, or restriction) would prohibit, restrict, limit, conflict with, or otherwise be inconsistent with the consummation of the transactions contemplated by the Exchange Agreement (including, without limitation, (a) the exchange of shares of Series B Preferred Stock for Exchange Consideration, (b) the designation and issuance of Series C Convertible Preferred Stock, (c) the issuance of the Senior Secured Convertible Note, (d) the issuance of shares of Common Stock as Exchange Consideration or upon conversion of the Series C Convertible Preferred Stock or the Note, (e) the granting of a security interest in the Company’s assets to secure the Note, or (f) the filing of the Series C Certificate of Designation), such provision is hereby amended, waived, and rendered inoperative solely to the extent necessary to permit the consummation of the transactions contemplated by the Exchange Agreement. This amendment shall not constitute a waiver or amendment of any provision of the Series B Certificate for any purpose other than the transactions contemplated by the Exchange Agreement.

3. No Anti-Dilution Adjustment. The issuance of shares of Series C Convertible Preferred Stock, the issuance of shares of Common Stock (whether as Exchange Consideration, upon conversion of the Series C Convertible Preferred Stock, upon conversion of the Senior Secured Convertible Note, or upon amortization, redemption, or repayment thereof), and the issuance of the Senior Secured Convertible Note, in each case pursuant to or in connection with the Exchange Agreement, shall not trigger any anti-dilution adjustment, price protection, or similar provision under the Series B Certificate with respect to any shares of Series B Preferred Stock that remain outstanding following any Exchange.

4. Senior Indebtedness. The holders of Series B Preferred Stock hereby acknowledge and consent that the Senior Secured Convertible Note issued pursuant to the Exchange Agreement shall constitute senior indebtedness of the Company, secured by a first priority security interest in the Company’s assets as set forth in the Security Documents (as defined in the Exchange Agreement). The holders of Series B Preferred Stock hereby waive any right to object to, or receive notice of, the granting of such security interest, and agree that the Series B Preferred Stock shall rank junior to the Note in right of payment and with respect to claims on the Company’s assets.

5. Reservation of Shares. The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock a sufficient number of shares to effect the issuance of Common Stock as Exchange Consideration and upon conversion and amortization of the Series C Convertible Preferred Stock and the Senior Secured Convertible Note issued pursuant to the Exchange Agreement.

6. Ratification. Except as expressly amended hereby, the Series B Certificate shall remain in full force and effect and is hereby ratified and confirmed in all respects. In the event of any conflict between the provisions of this amendment and the provisions of the Series B Certificate as in effect prior to this amendment, the provisions of this amendment shall control. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Series B Certificate or the Exchange Agreement, as applicable.

7. Effectiveness. This amendment shall become effective upon its filing with the Secretary of State of the State of Delaware.

[Signature Page Follows]

IN WITNESS WHEREOF, the Company has caused this Amendment to be executed by its duly authorized officer as of March 9, 2026.

EXHIBIT C

Series C Certificate of Designations

(see attached)

EXHIBIT D

Senior Secured Convertible Note

(see attached)

Exhibit 10.2 

PLEDGE AND SECURITY AGREEMENT

This PLEDGE AND SECURITY AGREEMENT (the “Agreement”) is made and entered into on March 9, 2026, by and between Functional Brands Inc., a corporation organized under the laws of the State of Delaware (the “Debtor”), and _________, a __________ organized under the laws of the State of _____________, and its permitted endorsees, transferees and assigns (collectively, the “Secured Party”).

RECITALS

A. Concurrently herewith, Debtor and the Secured Party have entered into an Exchange and Amendment Agreement (the “Exchange Agreement”) and certain other agreements, pursuant to which the Debtor issued that certain senior secured convertible promissory note (the “Note”) of--------------- Dollars ($---------) to the Secured Party.

B. The Debtor now enters into this Agreement with the Secured Party as security for Debtor’s Obligations (as defined below).

AGREEMENT

NOW, THEREFORE, in consideration of their respective promises contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

1. Definitions. Terms used but not otherwise defined in this Agreement that are defined in Article 9 of the Uniform Commercial Code as adopted in the state of Delaware (the “UCC”) (such as “account,” “adverse claim,” “chattel paper,” “deposit account,” “document,” “equipment,” “fixtures,” “general intangibles,” “goods,” “instruments,” “inventory,” “investment property,” “proceeds,” and “supporting obligations”) shall have the respective meanings given such terms in Article 9 of the UCC. Capitalized terms used in this Agreement and not defined elsewhere herein or in the Exchange Agreement shall have the meanings set forth below:

“Collateral” means all of the collateral identified on Exhibit A hereto.

“Debtor’s Books” means and includes all of Debtor’s books and records in any medium or form, including, but not limited to, all records, ledgers and computer programs, disk or tape files, thumb drives, material stored in the “cloud,” printouts and other information indicating, summarizing or evidencing the Collateral.

“Equity Interests” means, with respect to any person, all of the shares of capital stock of (or other ownership or profit interests in) such person, all of the warrants, options or other rights for the purchase or acquisition from such person of shares of capital stock of (or other ownership or profit interests in) such person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such person or warrants, rights or options for the purchase or acquisition from such person of such shares (or such other interests), and all of the other ownership or profit interests in such person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“Event of Default” has the meaning specified in Section 6 of this Agreement.

“Negotiable Collateral” means and includes all of Debtor’s presently existing and hereafter acquired or arising letters of credit, advices of credit, promissory notes, drafts, instruments, documents, Equity Interests in any entity, leases of personal property and chattel paper, as well as Debtor’s Books relating to any of the foregoing.

“Obligations” means and includes any and all present or future indebtedness or obligations of Debtor owing to the Secured Party under the Note and the other Transaction Documents, as defined herein, including, without limitation, (i) all interest and other payments required thereunder that are not paid when due, and (ii) all of the Secured Party Expenses which Debtor is required to pay or reimburse by this Agreement, by law, or otherwise.

“Permitted Liens” means (i) statutory liens of landlords and liens of carriers, warehousemen, bailees, mechanics, materialmen and other like liens imposed by law, created in the ordinary course of business and securing amounts not yet due (or which are being contested in good faith, by appropriate proceedings or other appropriate actions which are sufficient to prevent imminent foreclosure of such liens), and with respect to which adequate reserves or other appropriate provisions are being maintained by Debtor in accordance with generally accepted accounting principles (“GAAP”) , (ii) deposits made (and the liens thereon) in the ordinary course of business of Debtor (including, without limitation, security deposits for leases, indemnity bonds, surety bonds and appeal bonds) in connection with workers’ compensation, unemployment insurance and other types of social security benefits or to secure the performance of tenders, bids, contracts (other than for the repayment or guarantee of borrowed money or purchase money obligations), statutory obligations and other similar obligations arising as a result of progress payments under government contracts, (iii) liens for taxes not yet due and payable or which are being contested in good faith and with respect to which adequate reserves are being maintained by Debtor in accordance with GAAP, (iv) purchase money liens relating to the acquisition of equipment, machinery or other goods of Debtor approved in writing by the Secured Party (which approval shall not be unreasonably withheld, conditioned or delayed) and (v) liens in favor of the Secured Party under the Transaction Documents.

“Pledged Equity” means, with respect to Debtor, 100% of the issued and outstanding Equity Interests of any subsidiary that is directly owned by Debtor, whether now owned or hereafter acquired, in each case together with the certificates (or other agreements or instruments), if any, representing such shares, and all options and other rights, contractual or otherwise, with respect thereto, including, but not limited to, the following:

(1) all Equity Interests representing a dividend thereon, or representing a distribution or return of capital upon or in respect thereof, or resulting from a stock split, revision, reclassification or other exchange therefor, and any subscriptions, warrants, rights or options issued to the holder thereof, or otherwise in respect thereof; and

(2) in the event of any consolidation or merger involving the issuer thereof and in which such issuer is not the surviving person, all shares of each class of the Equity Interests of the successor person formed by or resulting from such consolidation or merger, to the extent that such successor person is a direct subsidiary of an Debtor.

The term “Pledged Equity” specifically includes, but is not limited to, all rights of Debtor embodied in or arising out of the Debtor’s status as a shareholder or member, consisting of: (a) all economic rights, including without limitation, all rights to share in the profits and losses and all rights to receive distributions of the assets; and (b) all governance rights, including without limitation, all rights to vote, consent to action and otherwise participate in the management.

“Secured Party Expenses” means and includes (i) all costs or expenses required to be paid by Debtor under this Agreement that are instead paid or advanced by the Secured Party, including without limitation, all taxes, insurance, satisfaction of liens, securities interests, encumbrances or other claims at any time levied or placed on the Collateral, (ii) all reasonable costs and expenses incurred to correct any default or enforce any provision of this Agreement, or in gaining possession of, maintaining, disabling, handling, preserving, storing, shipping, selling, preparing for sale or advertising to sell all or any part of the Collateral, irrespective of whether a sale is consummated, and (iii) all reasonable costs and expenses (including reasonable attorney’s fees) incurred by the Secured Party in enforcing or defending this Agreement, irrespective of whether suit is brought.

“Transaction Documents” means and includes the Note, Exchange Agreement and all related documents executed in connection therewith, including, without limitation, any amendments to any of the foregoing.

2. Construction. Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular and vice versa, to the part include the whole, “including” is not limiting, and “or” has the inclusive meaning represented by the phrase “and/or.” The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references are to this Agreement, unless otherwise specified.

3. Creation of Security Interest. In order to secure Debtor’s timely payment of the Obligations and timely performance of each and all of its covenants and obligations under this Agreement, the Transaction Documents, and any other document, instrument or agreement executed by Debtor or delivered by Debtor to the Secured Party in connection with the Obligations, Debtor hereby unconditionally and irrevocably grants, pledges and hypothecates to the Secured Party a continuing security interest in and to, a lien upon, assignment of, and right of set-off against, all presently existing and hereafter acquired or arising Collateral. Such security interest shall be a first priority security interest. Such security interest shall attach to all Collateral without further act on the part of the Secured Party or Debtor.

4. Filings; Further Assurances.

(a) General. The Secured Party is authorized to file a UCC-1 Financing Statement (or its equivalent) with the Secretary of State of the State of Delaware and in any other jurisdictions where the Secured Party chooses to file, with respect to the Debtor. Debtor also authorizes the filing by the Secured Party of such other UCC financing statements, continuation financing statements, fixture filings, filing appropriate notices in international or federal registries including the United States Patent and Trademark Office, security agreements, mortgages, deeds of trust, chattel mortgages, assignments, assignments of rents, motor vehicle lien acknowledgments and other documents as the Secured Party may reasonably require in order to perfect, maintain, protect or enforce its security interest in the Collateral or any portion thereof and in order to fully consummate all of the transactions contemplated under this Agreement. Subject to the foregoing, if so requested by the Secured Party at any time hereafter, Debtor shall promptly execute and deliver to the Secured Party such fixture filings, agreements, security agreements, mortgages, deeds of trust, chattel mortgages, assignments, motor vehicle lien acknowledgments and other documents as the Secured Party may reasonably require from such Debtor in order to perfect, maintain, protect or enforce its rights under this Agreement. Debtor shall promptly deliver to the Secured Party any and all certificates and instruments constituting the Pledged Equity in suitable form for transfer by delivery and accompanied by duly executed instruments of transfer or assignment in blank. Debtor hereby irrevocably makes, constitutes and appoints the Secured Party as such Debtor’s true and lawful attorney with power, upon Debtor’s failure or refusal to promptly comply with its obligations in this Section 4(a), to sign the name of Debtor on any of the above-described documents or on any other similar documents which need to be executed, recorded or filed in order to perfect, maintain, protect or enforce the Secured Party’s security interest in the Collateral. Debtor further agrees to enter into such control agreements with the Secured Party and such third parties as may be necessary to obtain a first priority security interest in the Collateral, including deposit accounts and Pledged Equity, and agrees to use best efforts to obtain the assent of the third parties to said agreements.

(b) Mortgage. Debtor hereby authorizes Secured Party to obtain a mortgage on any and all of its real estate. Debtor covenants and agrees that it will execute any documents, provide any information and take such other action as is requested by Secured Party to effectuate such mortgage.

(c) Additional Matters. Without limiting the generality of Section 4(a), Debtor will at the reasonable written request of the Secured Party, appear in and defend any action or proceeding which is reasonably expected to have a material and adverse effect with respect to such Debtor’s title to, or the security interest of the Secured Party in, the Collateral.

5. Representations, Warranties and Agreements. Debtor represents, warrants and agrees as follows:

(a) No Other Encumbrances. Except as disclosed in the disclosure schedules to the Exchange Agreement, Debtor has good and marketable title to its Collateral, free and clear of any liens, claims, encumbrances and rights of any kind, except the Liens scheduled pursuant to the Exchange Agreement or as otherwise approved in writing by the Secured Party, and has the right to pledge, sell, assign or transfer the Collateral.

(b) Authorization of Pledged Equity. All Pledged Equity is duly authorized and validly issued, is fully paid and, to the extent applicable, nonassessable and is not subject to the preemptive rights of any person.

(c) Security Interest/Priority. This Agreement creates a valid security interest in favor of the Secured party in the Collateral of Debtor and, when properly perfected by filing shall constitute a valid and perfected first priority security interest in such Collateral (including all uncertificated Pledged Equity consisting of partnership or limited liability company interests that do not constitute securities), to the extent such security interest can be perfected by filing under the UCC, free and clear of all liens except for liens permitted by the Exchange Agreement. The taking possession by the Secured Party of the certificated securities (if any) evidencing the Pledged Equity and all other Instruments constituting Collateral will perfect and establish the first priority of the Secured Party’s security interest in all the Pledged Equity evidenced by such certificated securities and such instruments. With respect to any Collateral consisting of a deposit account, investment property, securities entitlement or held in a securities account, upon execution and delivery by the Debtor, the applicable depository bank or securities intermediary and the Secured Party of an agreement granting control to the Secured Party over such Collateral, the Secured Party shall have a valid and perfected first priority security interest in such Collateral.

(d) Consents; Etc. There are no restrictions in any organizational document governing any Pledged Equity or any other document related thereto which would limit or restrict (i) the grant of a security interest pursuant to this Agreement in such Pledged Equity, (ii) the perfection of such security interest or (iii) the exercise of remedies in respect of such perfected security interest in the Pledged Equity as contemplated by this Agreement. Except for (i) the filing or recording of UCC financing statements, (ii) the filing of appropriate notices with the United States Patent and Trademark Office, the United States Copyright Office; with other applicable international registries, federal registries; and with local registries regarding assignments of rents and fixture filings, (iii) obtaining control to perfect the security interests created by this Agreement (to the extent required under Section 4 hereof), (iv) such actions as may be required by laws affecting the offering and sale of securities, and (v) consents, authorizations, filings or other actions which have been obtained or made, no consent or authorization of, filing with, or other act by or in respect of, any arbitrator or governmental authority and no consent of any other person (including, without limitation, any stockholder, member or creditor of Debtor), is required for (A) the grant by Debtor of the security interest in the Collateral granted hereby or for the execution, delivery or performance of this Agreement by Debtor, (B) the perfection of such security interest (to the extent such security interest can be perfected by filing under the UCC, the granting of control (to the extent required, or as provided in Section 4(a) hereof) or by filing an appropriate notice with the United States Patent and Trademark Office, the United States Copyright Office or other applicable registry) or (C) the exercise by the Secured party of the rights and remedies provided for in this Agreement.

(e) Location of Place(s) of Business. All places of business of Debtor, including the identification of the principal place of business of Debtor, and the address(es) at which the Collateral is (are) located, are indicated on Schedule 5(e) hereto. Debtor shall not, without at least thirty (30) days prior written notice to the Secured Party, relocate such principal place of business or the Collateral, with no relocation being permitted outside the United States in any event.

(f) Right to Inspect the Collateral. The Secured Party shall have the right, during usual business hours of the Debtor and upon reasonable advance notice, to inspect and examine the Collateral. Debtor agrees that any reasonable expenses incurred by the Secured Party in connection with this Section 5(f) during the continuance of an Event of Default shall constitute Secured Party Expenses.

(g) Negative Covenants. Except for sale of inventory in the ordinary course of business, Debtor shall not (i) sell, lease or otherwise dispose of, relocate or transfer, any of the Collateral, except dispositions of Collateral that is worn out, obsolete or no longer necessary in the business of Debtor, (ii) allow any liens on or grant security interests in the Collateral except the Permitted Liens or (iii) change the Debtor’s name or add any new fictitious name without the written consent of the Secured Party.

(h) Further Information. Debtor shall promptly supply the Secured Party with such information concerning Debtor and Debtor’s business as the Secured Party may reasonably request from time-to-time hereafter, and shall within five (5) business days of obtaining knowledge thereof, notify the Secured Party of any event which constitutes an Event of Default.

(i) Solvency. Debtor is now and shall be at all times hereafter able to pay its debts (including trade debts) as they mature.

(j) Secured Party Expenses. Debtor shall, within fifteen (15) business days of written demand from the Secured Party accompanied by adequate documentation of such expenses, reimburse the Secured Party for all sums expended by it which constitute Secured Party Expenses and, in the event that Debtor does not pay any Secured Party Expenses payable to a third party within fifteen (15) business days after notice thereof, then the Secured Party may immediately and without further notice pay such Secured Party Expenses on Debtor’s behalf. All such expenses shall become a part of the Obligations and, at the Secured Party’s option, will (i) be payable on demand or (ii) be added to the balance of the Note and be payable proportionately with any installment payments that become due during the remaining term of the Note or, (iii) at Secured Party’s option, may be treated as a balloon payment which will be due and payable at the maturity of the Note. This Agreement shall also secure payment of those amounts.

(k) Commercial Tort Claims. Debtor has no pending commercial tort claim (as a plaintiff) against any individual or entity (a “Commercial Claim”). Debtor shall promptly deliver to the Secured Party notice of any Commercial Claim that a Debtor may bring against any individual or entity, together with such information with respect thereto as the Secured Party may reasonably request. Within ten (10) days after a written request by the Secured Party, Debtor shall grant the Secured Party a security interest in any pending Commercial Claim to the extent such security interest is permitted by applicable law.

(l) Reliance by the Secured Party; Representations Cumulative. Each representation, warranty and agreement contained in this Agreement shall be conclusively presumed to have been relied on by the Secured Party regardless of any investigation made or information possessed by the Secured Party. The representations, warranties and agreements set forth herein shall be cumulative and in addition to any and all other representations, warranties and agreements set forth in the Transaction Documents or any other documents created after the Closing Date and signed by Debtor.

6. Events of Default. The occurrence of any of the following shall constitute an “Event of Default” by Debtor under this Agreement: (a) the occurrence of any Event of Default under the Note or any other Transaction Document, after the expiration of any applicable grace or cure period; (b) any breach by Debtor of any covenant, agreement, or obligation contained in this Agreement that continues unremedied for ten (10) days after such breach occurs (or, if earlier, five (5) days after written notice from Secured Party); (c) any representation or warranty made by Debtor in this Agreement proves to have been false or misleading in any material respect when made; or (d) the security interest granted hereunder shall at any time fail to constitute a valid and perfected first priority security interest in any material portion of the Collateral, except as permitted by the terms hereof.

7. Rights and Remedies.

(a) Rights and Remedies of the Secured Party.

(i) Upon the occurrence and during the continuance of an Event of Default, without notice of election and without demand, the Secured Party may cause any one or more of the following to occur, all of which are authorized by Debtor:

(A) The Secured Party may make such payments and do such acts as it reasonably considers necessary to protect its security interest in the Collateral. Debtor agrees to promptly assemble and make available the Collateral if the Secured Party so requires. Debtor authorizes the Secured Party to enter the premises where any of the Collateral is located, take and maintain possession of the Collateral, or any part thereof, and pay, purchase, contest or compromise any encumbrance, claim, right or lien which, in the reasonable opinion of the Secured Party, appears to be prior or superior to its security interest in violation of this Agreement, and to pay all reasonable expenses incurred in connection therewith.

(B) The Secured Party shall be automatically deemed to be granted a license or other appropriate right to use, without charge or representation or warranty, Debtor’s labels, patents, copyrights, rights of use of any name, trade secrets, trade names, trademarks and advertising matter, and any other property of a similar nature, as it pertains to the Collateral, in completing production of, advertising for sale and selling any Collateral.

(C) The Secured Party may ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for sale and sell (in the manner provided for herein) the Collateral.

(D) The Secured Party may sell the Collateral at either a public or private sale, or both (which in the case of a private sale of Pledged Equity, shall be to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such securities for their own accounts, for investment and not with a view to the distribution or resale thereof), by way of one or more contracts or transactions, for cash or on terms, in such manner and at such places (including Debtor’s premises) as is commercially reasonable (it not being necessary that the Collateral be present at any such sale) for the purposes of satisfying the Obligations. In the case of a sale of Pledged Equity, the Secured Party shall have no obligation to delay sale of any such securities for the period of time necessary to permit the issuer of such securities to register such securities for public sale under the Securities Act of 1933. Debtor further acknowledges and agrees that any offer to sell any Pledged Equity which has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Secured Party may, in such event, bid for the purchase of such securities.

(E) The Secured Party shall be entitled to give notice of the disposition of the Collateral as follows: (1) the Secured Party shall give Debtor a notice in writing of the time and place of public sale, or, if the sale is a private sale or some other disposition other than a public sale is to be made of the Collateral, the time on or after which the private sale or other disposition is to be made, (2) the notice shall be personally delivered or mailed, postage prepaid, to Debtor at least ten (10) days before the date fixed for the sale, or at least ten (10) days before the date on or after which the private sale or other disposition is to be made, unless the Collateral is perishable or threatens to decline speedily in value, in which case the Secured Party shall use commercially reasonable efforts to provide such notice to Debtor as far in advance of such disposition as is practicable.

(F) The Secured Party may purchase all or any portion of the Collateral at any public sale by credit bid or other appropriate payment therefor.

(G) The Secured Party shall have the following rights and remedies regarding the appointment of a receiver: (1) the Secured Party may have a receiver appointed as a matter of right, (2) the receiver may be an employee of the Secured Party and may serve without bond, and (3) all fees of the receiver and his or her attorney shall be Secured Party Expenses and become part of the Obligations and shall be payable on demand, with interest at the Rate specified in the Note from the date of expenditure until repaid. The Debtor acknowledges and agrees that the Secured Party shall have the rights with respect to the appointment of a receiver as described herein, even if such right is not statutorily provided under applicable law. Notwithstanding anything to the contrary herein or in the Note or in any other Transaction Documents, Debtor acknowledges and agrees that the Secured Party shall have the right with respect to the appointment of a receiver as described herein, in any jurisdiction at the sole discretion of the Secured Party.

(H) The Secured Party, either itself or through a receiver, may collect the payments, rents, income, dividends, distributions and revenues (together, “Revenue”) from the Collateral. The Secured Party may at any time, in its reasonable discretion, transfer any Collateral into its own name or that of its nominee(s) and receive the Revenue therefrom and hold the same as security for the Obligations or apply it to payment of the Obligations in such order of preference as the Secured Party may determine. Insofar as the Collateral consists of accounts, general intangibles, loans receivable, insurance policies, instruments, chattel paper, choses in action, or similar property, the Secured Party may demand, collect, issue receipts for, settle, compromise, adjust, sue for, foreclose, or otherwise realize on the Collateral as the Secured Party may determine (in its reasonable discretion), whether or not the Obligations are then due. For these purposes, the Secured Party may, on behalf of and in the name of Debtor, (1) receive, open, and dispose of mail addressed to Debtor; (2) change any address to which mail and payments are to be sent; and (3) endorse notes, checks, drafts, money orders, documents of title, instruments and items pertaining to the payment, shipment, or storage of any Collateral. To facilitate collection, the Secured Party may notify account debtors and Debtor on any Collateral to make payments directly to the Secured Party.

(ii) The Secured Party may deduct from the proceeds of any sale of the Collateral all Secured Party Expenses incurred in connection with the enforcement and exercise of any of the rights and remedies of the Secured Party provided for herein, irrespective of whether suit is commenced. If such deduction does not occur (in the Secured Party’s reasonable discretion), upon demand, Debtor shall pay all of such Secured Party Expenses. Any deficiency which exists after disposition of the Collateral as provided herein will be paid immediately by Debtor, and any excess that exists will be returned, without interest and subject to the rights of third parties, to Debtor by the Secured Party; provided, however, that if any excess exists at a time when any of the Obligations remain outstanding, such excess shall instead remain as part of the Collateral and continue to be subject to the security interest in Section 3(a) above until such time as all of the Obligations have been fully satisfied or otherwise terminated.

(iii) Voting and payment Rights in Respect of the Pledged Equity.

(A) So long as no Event of Default shall exist, Debtor may (1) exercise any and all voting and other rights pertaining to the Pledged Equity of such Debtor or any part thereof for any purpose not inconsistent with the terms of this Agreement or the Exchange Agreement and (2) receive and retain any and all dividends (other than stock dividends and other dividends constituting Collateral which are addressed hereinabove), principal or interest paid in respect of the Pledged Equity to the extent they are allowed under the Exchange Agreement; and

(B) During the continuance of an Event of Default, (1) all rights of an Debtor to exercise the voting and other consensual rights which it would otherwise be entitled to exercise pursuant to clause (A)(1) above shall cease and all such rights shall thereupon become vested in the Secured Party which shall then have the sole right to exercise such voting and other consensual rights, (2) all rights of an Debtor to receive the dividends, principal and interest payments which it would otherwise be authorized to receive and retain pursuant to clause (A)(2) above shall cease and all such rights shall thereupon be vested in the Secured Party which shall then have the sole right to receive and hold as Collateral such dividends, principal and interest payments, and (3) all dividends, principal and interest payments which are received by a Debtor contrary to the provisions of clause (B)(2) above shall be received in trust for the benefit of the Secured Party, shall be segregated from other property or funds of such Debtor, and shall be forthwith paid over to the Secured Party as Collateral in the exact form received, to be held by the Secured Party as Collateral and as further collateral security for the Secured Obligations.

(b) Rights and Remedies Cumulative. The rights and remedies of the Secured Party under this Agreement and any other agreements and documents delivered or executed in connection with the Obligations shall be cumulative. The Secured Party shall also have all other rights and remedies not inconsistent herewith as are provided under applicable law, or in equity. No exercise by the Secured Party of any one right or remedy shall be deemed an election.

8. Additional Waivers. The Secured Party shall not in any way or manner be liable or responsible for (i) the safekeeping of the Collateral, (ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the value thereof or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency or other person whomsoever, except to the extent that such loss, damage, liability, cost or expense has resulted from the gross negligence or willful misconduct of the Secured Party or its affiliates. If the Secured Party at any time has possession of any Collateral, whether before or after an Event of Default, the Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if the Secured Party takes such action for that purpose as Debtor shall request or as the Secured Party, in its reasonable discretion, shall deem appropriate under the circumstances, but failure to honor any request by Debtor shall not of itself be deemed to be a failure to exercise reasonable care. The Secured Party shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, nor to protect, preserve, or maintain any security interest given to secure the Obligations.

9. Notices. All notices or demands by any party relating to this Agreement or any of the Transaction Documents shall be as provided in Section 5.2 of the Note.

10. Choice of Law; Consent to Jurisdiction; Dispute Resolution. The validity of this Agreement, its construction, interpretation and enforcement, and the rights of the parties hereunder and concerning the Collateral, shall be determined under, governed by, and construed in accordance with the laws of the state of Delaware as applied to contracts made and to be fully performed in such state, without regard to the conflicts of laws provisions thereof, except to the extent that the validity, perfection or enforcement of a security interest hereunder in respect of any Collateral is governed by the laws of some other jurisdiction, in which case such laws shall govern. Notwithstanding anything to the contrary contained herein, the parties expressly acknowledge and agree that Section 5.6 of the Note governs exclusively any dispute, claim or controversy arising out of or relating to this Agreement or any of the Transaction Documents, including without limitation arbitration, forum selection, jurisdiction, service of process, waiver of jury trial, remedies, and the availability of equitable relief, and such Section 5.6 is hereby incorporated by reference as if set forth herein in its entirety.

11. General Provisions.

(a) Effectiveness. This Agreement shall be binding and deemed effective against Debtor when executed by Debtor and the Secured Party.

(b) Successors and Assigns. This Agreement shall bind and inure to the benefit of the successors and permitted endorsees, transferees and assigns of the Secured Party. Debtor shall not assign this Agreement or any rights or obligations hereunder, and any such assignment shall be absolutely void.

(c) Section Headings. Section headings are for convenience only.

(d) Interpretation. No uncertainty or ambiguity herein shall be construed or resolved against the Secured Party or Debtor, whether under any rule of construction or otherwise. This Agreement shall be construed and interpreted according to the ordinary meaning of the words used so as to fairly accomplish the purposes and intentions of the parties.

(e) Severability of Provisions. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision.

(f) Entire Agreement; Amendments. This Agreement and the agreements and documents referenced herein contain the entire understanding of the parties with respect to the subject matter covered herein and supersede all prior agreements, negotiations and understandings, written or oral, with respect to such subject matter. No provision of this Agreement shall be waived or amended other than by an instrument in writing signed by Debtor and the Secured Party.

(g) Good Faith. The parties intend and agree that their respective rights, duties, powers, liabilities and obligations shall be performed, carried out, discharged and exercised reasonably and in good faith.

(h) Waiver and Consent. No delay or omission on the part of the Secured Party in exercising any right shall operate as a waiver of such right or any other right. A waiver by the Secured Party of a provision of this Agreement or any other agreement between or among the parties shall not prejudice or constitute a waiver of the Secured Party’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by the Secured Party, nor any course of dealing between the Secured Party and Debtor, shall constitute a waiver of any of the Secured Party’s rights or of any of Debtor’s obligations as to any future transactions. Whenever the consent of the Secured Party is required under this Agreement, the granting of such consent by the Secured Party in any instance shall not constitute continuing consent to subsequent instances where such consent is required, and in all cases such consent may be granted or withheld in the reasonable discretion of the Secured Party.

(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same agreement.

(j) Termination. Upon full satisfaction or other termination of the Obligations (i) the Secured Party shall release and return to Debtor all of the Collateral and any and all certificates and other documentation representing or relating to the Collateral and (ii) the security interests provided for under this Agreement shall be terminated and of no further force and effect. At Debtor’s expense, the Secured Party shall take all actions reasonably requested by Debtor in connection with the foregoing.

(k) Consent of Debtor as Issuers of Pledged Equity. Debtor/issuer of Pledged Equity party to this Agreement hereby acknowledges, consents and agrees to the grant of the security interests in such Pledged Equity pursuant to this Agreement, together with all rights accompanying such security interest as provided by this Agreement and applicable law, notwithstanding any anti-assignment provisions in any operating agreement, limited partnership agreement or similar organizational or governance documents of such issuer.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized persons on the date first written above.

[signature page to Security Agreement]

Schedule 5(e)

Addresses of Debtor/Principal Place of Business of Debtor

EXHIBIT A

COLLATERAL

All of the right, title and interest of Debtor in and to the following property, wherever located and whether now owned by Debtor or hereafter acquired by Debtor:

1. All accounts, chattel paper, contracts, contract rights, accounts receivable, tax refunds, tax credits, Notes receivable, Pledged Equity, documents, choses in action and general intangibles, including, but not limited to, proceeds of inventory and returned goods and proceeds from the sale of goods and services, and all rights, liens, securities, guaranties, remedies and privileges related thereto, including the right of stoppage in transit and rights and property of any kind forming the subject matter of any of the foregoing;

2. All certificates of deposit and all time, savings, demand, or other deposit accounts in the name of Debtor or in which Debtor has any right, title or interest, including but not limited to all sums now or at any time hereafter on deposit, and any renewals, extensions or replacements of and all other property which may from time to time be acquired directly or indirectly using the proceeds of any of the foregoing;

3. All inventory and equipment of every type or description wherever located, including, but not limited to all raw materials, parts, containers, work in process, finished goods, goods in transit, wares, merchandise, furniture, fixtures, hardware, machinery, tools, parts, supplies, automobiles, trucks, other intangible property of whatever kind and wherever located associated with the Debtor’s business, tools and goods returned for credit, repossessed, reclaimed or otherwise reacquired by Debtor;

4. All documents of title and other property from time to time received, receivable or otherwise distributed in respect of, exchange or substitution for or addition to any of the foregoing including, but not limited to, any documents of title;

5. All know-how, information, labels, permits, patents, copyrights, goodwill, trademarks, trade names, licenses and approvals held by Debtor, including all other intangible property of Debtor;

6. All assets of any type or description that may at any time be assigned or delivered to or come into possession of Debtor for any purpose for the account of Debtor or as to which Debtor may have any right, title, interest or power, and property in the possession or custody of or in transit to anyone for the account of Debtor, as well as all proceeds and products thereof and accessions and annexations thereto, provided, however, that “assets” as referred to in this Section 6, shall expressly exclude any personally identifiable information or other customer data that the Debtor is prohibited from pledging or assigning under applicable law, data protection regulations, or contractual obligations.;

7. Debtor’s tangible and intangible personal property assets, including, but not limited to, all of the following: (i) all accounts, health-care-insurance receivables, cash and currency, chattel paper, deposit accounts, documents, equipment, fixtures, general intangibles, instruments, intellectual property, inventory, investment property, Negotiable Collateral, loans receivable, motor vehicles, Pledged Equity, goods, supporting obligations, Debtor’s Books, and such other assets of Debtor as may hereafter arise or Debtor may hereafter acquire or in which the Secured Party may from time-to-time obtain a security interest, and (ii) the proceeds of any of the foregoing, including, but not limited to, proceeds of insurance covering the foregoing or any portion thereof; provided, however, that notwithstanding anything to the contrary contained in this Agreement, the Collateral does not include any “hazardous waste” as that term is defined under 42 U.S.C. section 6903(5), as such section may be from time to time amended, or under any regulations thereunder; and

8. All proceeds (including but not limited to insurance proceeds), products of, and accessions and annexations of any of the foregoing.