8-K
TurnOnGreen, Inc. (TOGI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
___________________________________________________________________
Date of Report (Date of earliest event reported): October
29, 2025
TURNONGREEN, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 000-52140 | 20-5648820 |
|---|---|---|
| (State or other jurisdiction of <br><br>incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification No.) |
1421 McCarthy Blvd., Milpitas, CA 95035
(Address of principal executive offices) (Zip Code)
(510) 657-2635
(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act: None.
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
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On October 29, 2025 (the “ExecutionDate”), TurnOnGreen, Inc., a Nevada corporation (the “Company”) entered into a Securities Purchase Agreement (the “Agreement”) with SJC Lending LLC, a Delaware limited liability company (“SJC”), pursuant to which the Company agreed to sell to SJC convertible promissory notes in the aggregate principal amount of up to $1,650,000 (the “Convertible Notes”) for a total purchase price of up to $1.5 million (the “Loan”).
The consummation of the transactions contemplated by the Agreement is subject to various customary closing conditions.
In addition, SJC entered into various collateral agreements in support of the Convertible Notes, including: (i) an Intellectual Property Security Agreement (the “IP SecurityAgreement”), pursuant to which the Company and its subsidiaries, Digital Power Corporation, a Delaware corporation (“DigitalPower”), and TOG Technologies, Inc., a Nevada corporation (“TOGT” and, together with Digital Power, collectively, the “Company’s Subsidiaries”), granted SJC a continuing security interest in all of their right, title, and interest in certain trademarks, copyrights, patents, and mask works; (ii) a Security Agreement (the “Security Agreement”), pursuant to which the Company and the Company’s Subsidiaries granted SJC a security interest in substantially all of their respective assets as collateral for repayment of the Convertible Notes; and (iii) a Pledge Agreement (the “Pledge Agreement”), pursuant to which the Company pledged the capital stock of the Company’s Subsidiaries as additional collateral.
The material terms of the Agreement and the Convertible Notes are summarized below.
Description of the Agreement
The Agreement provides that the Loan shall be conducted through seven (7) separate tranche closings, provided, however, that SJC has the ability, exercisable in its sole discretion, to purchase any principal face amount of Convertible Notes prior to the dates of the tranche closings provided for in the Agreement.
Pursuant to the Agreement, the initial tranche closing, which occurred on the Execution Date, consisted of the issuance of a Convertible Note to SJC in the principal face amount of Four Hundred Forty Thousand Dollars ($440,000), for a purchase price of Four Hundred Thousand Dollars ($400,000).
Pursuant to the Agreement, subject to certain conditions being satisfied, following the filing by the Company with the Securities and Exchange Commission (the “SEC”) of a registration statement (the “Registration Statement”) registering for resale under the Securities Act of 1933, as amended (the “Securities Act”), the shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable upon conversion of the Convertible Notes, SJC will purchase a Convertible Note in the principal face amount of Two Hundred Twenty Thousand Dollars ($220,000), for a purchase price of Two Hundred Thousand Dollars ($200,000).
Following the SEC’s declaration of effectiveness of the Registration Statement, subject to certain conditions being satisfied, SJC will purchase additional Convertible Notes having an aggregate principal face amount of Nine Hundred Ninety Thousand Dollars ($990,000) for a total purchase price of Nine Hundred Thousand Dollars ($900,000), to be funded in monthly increments consistent with the tranche schedule set forth in the Agreement.
Until the later of the date that all Convertible Notes have been (i) repaid in full or (ii) fully converted into shares of Common Stock pursuant to the terms of the Agreement and the Convertible Notes, neither the Company nor any subsidiary thereof shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or instruments convertible into, exercisable or exchangeable for such shares of Common Stock, with certain exceptions.
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The Agreement and the Convertible Notes contain customary affirmative and negative covenants applicable to the Company and its subsidiaries. Among other things, the Company is restricted, for so long as any Convertible Notes remain outstanding, from (i) incurring additional indebtedness or granting liens other than permitted indebtedness and liens, (ii) declaring or paying dividends or other distributions, (iii) entering into mergers, acquisitions, or other change-of-control transactions, (iv) selling or transferring material assets outside the ordinary course of business, (v) issuing additional equity or convertible securities except as expressly permitted, and (vi) amending its charter, bylaws, or other governing documents in a manner adverse to the holder of the Convertible Notes. These covenants are subject to customary exceptions and thresholds as set forth in the Agreement and the Convertible Notes.
Additionally, commencing on the Execution Date and continuing until the earlier of (i) such date when the Convertible Notes are no longer outstanding or (ii) one (1) year thereafter, the Company shall be prohibited from entering into a variable rate transaction.
From the Execution Date and continuing until the date that is one (1) year therefrom, SJC shall have a right of first refusal with respect to any investment proposed to be made by any individual or entity for each and every future public or private equity offering, including a debt instrument convertible into equity of the Company during such period.
The Agreement contains customary representations, warranties and agreements by the Company, obligations of the parties, termination provisions and closing conditions. The representations, warranties and covenants contained in the Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
Description of Convertible Notes
The first Convertible Note, which was issued to SJC on the Execution Date, has a principal face amount of $440,000 and was issued with an original issue discount of ten percent (10%). The remaining Convertible Notes will be issued as described above under “Description of the Agreement.” The Convertible Notes accrue interest at the rate of 12% per annum, unless an event of default (as defined in the Convertible Notes) occurs, at which time the Convertible Notes in excess of $300,000 will accrue interest at 20% per annum. The Convertible Notes will mature on the first anniversary of their respective issuance dates. The Convertible Notes are convertible into shares (the “Conversion Shares”) of the Company’s Common Stock on the terms and conditions set forth in the Convertible Notes, at a conversion price (the “ConversionPrice”) equal to the greater of (i) $0.035 per share (the “Floor Price”), which Floor Price shall not be adjusted for stock dividends, stock splits, stock combinations, or other similar transactions, and (ii) an amount representing a 20% discount to the Company’s lowest VWAP (as defined in the Convertible Notes) on any Trading Day (as defined in the Convertible Notes) during the ten (10) Trading Days immediately prior to the date of conversion.
The Convertible Notes contain standard and customary events of default including, but not limited to, failure to pay amounts due under the Convertible Notes when required, failure to deliver Conversion Shares when required, default in covenants and bankruptcy events.
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy the Conversion Shares, nor shall there be any offer, solicitation or sale of the Conversion Shares in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
The representations, warranties and covenants contained in the Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to the agreements and are subject to limitations agreed upon by the contracting parties. Accordingly, the Agreement is incorporated herein by reference only to provide investors with information regarding the terms of the Agreement and not to provide investors with any other factual information regarding the Company or its business and should be read in conjunction with the disclosures in the Company’s periodic reports and other filings with the Commission.
The foregoing descriptions of the Agreement, the Convertible Notes, the Security Agreement, the Pledge Agreement, and the IP Security Agreement, do not purport to be complete and are qualified in their entirety by reference to their respective forms which are annexed hereto as Exhibits 4.1, 10.1, 10.2, 10.3and 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. The foregoing does not purport to be a complete description of the rights and obligations of the parties thereunder and such descriptions are qualified in their entirety by reference to such exhibits.
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The disclosure required by this Item and included in Item 1.01 of this Current Report is incorporated herein by reference.
| Item 3.02 | Unregistered Sales of Equity Securities. |
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The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference to this Item 3.02. The Convertible Note described in this Current Report on Form 8-K was offered and issued to SJC in reliance upon exemption from the registration requirements under Section 4(a)(2) under the Securities Act of 1933, as amended.
| Item 9.01 | Financial Statements and Exhibits. |
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| (d) | Exhibits: |
| --- | --- |
| Exhibit No. | Description |
| --- | --- |
| 4.1 | Form of Convertible Note, issued October 29, 2025. |
| 10.1 | Securities Purchase Agreement, dated October 29, 2025, by and between TurnOnGreen, Inc. and SJC Lending LLC. |
| 10.2 | Form of IP Security Agreement, dated October 29, 2025. |
| 10.3 | Form of Security Agreement, dated October 29, 2025. |
| 10.4 | Form of Pledge Agreement, dated October 29, 2025. |
| 101 | Pursuant to Rule 406 of Regulation S-T, the cover page is<br> formatted in Inline XBRL (Inline eXtensible Business Reporting Language). |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL<br> document and included in Exhibit 101). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| TURNONGREEN, INC. | |
|---|---|
| Dated: October 29, 2025 | /s/ Amos Kohn |
| Amos Kohn | |
| Chief Executive Officer and Chairman |
5
Exhibit 4.1
SECURED CONVERTIBLE PROMISSORY NOTE
NEITHER THE ISSUANCE AND SALE OF THE SECURITIESREPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIESACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FORSALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIESACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TOTHE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHERLOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS SECURED CONVERTIBLE PROMISSORY NOTE SHOULD CAREFULLY REVIEWTHE TERMS OF THIS SECURED CONVERTIBLE PROMISSORY NOTE, INCLUDING SECTION 3(b) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS SECUREDCONVERTIBLE PROMISSORY NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ONTHE FACE HEREOF PURSUANT TO SECTION 3(c)(ii) OF THIS SECURED CONVERTIBLE PROMISSORY NOTE.
TURNONGREEN, INC.
SECURED CONVERTIBLE PROMISSORY NOTE DUE OCTOBER 29, 2026
| Issuance Date: October 29, 2025 | Principal Amount: $440,000 |
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| Purchase Price: $400,000 |
FOR VALUE RECEIVED, TurnOnGreen, Inc., a Nevada corporation (the “Company”), hereby promises to pay to the order of SJC Lending LLC, or its registered assigns (“Holder”), the amount set forth above as the principal amount (the “Principal”) when due, whether upon October 29, 2026 (the “Maturity Date”), or upon acceleration, prepayment or otherwise (in each case in accordance with the terms hereof) and to pay interest (“Interest”) on any outstanding Principal at the applicable Interest Rate (as defined below) from the date set forth above as the Issuance Date (the “Issuance Date”) until the same becomes due and payable, whether upon the Maturity Date or upon acceleration, conversion, prepayment or otherwise (in each case in accordance with the terms hereof). The Note was issued with an original issuance discount of ten percent (10%). This Secured Convertible Promissory Note (this “Note”) is issued to the Holder as of the Issuance Date by the Company. Certain capitalized terms used herein are defined in Section 20.
1. PAYMENTS OF PRINCIPAL.
On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal and accrued and unpaid Interest on such Principal. Other than as specifically permitted by this Note, the Company may not prepay any portion of the outstanding Principal or accrued and unpaid Interest.
2. INTEREST RATE; DEFAULT RATE.
(a) Interest on this Note shall commence accruing on the Issuance Date at 12% per annum subject to adjustment in accordance with the terms of this Section 2 (the “Interest Rate”), shall be calculated on the basis of a 360-day year and twelve 30-day months, compounded daily, and shall be payable by the Company to the Holder, in cash, on the Maturity Date.
(b) From and after the occurrence and during the continuance of any Event of Default, the Interest Rate on all outstanding amounts of Principal in excess of $300,000 shall automatically be increased to 20% per annum (the “Default Rate”), and shall be due and payable on the first Trading Day of each calendar month during the continuance of such Event of Default (a “Default InterestPayment Date”). In the event that such Event of Default is subsequently cured (and no other Event of Default then exists (including, without limitation, for the Company’s failure to pay such Interest at the Default Rate on the applicable Default Interest Payment Date), the adjustment referred to in the preceding sentence shall cease to be effective as of the day immediately following the date of such cure; provided that the Interest as calculated and unpaid at such increased rate during the continuance of such Event of Default shall continue to apply to the extent relating to the days after the occurrence of such Event of Default through and including the date of such cure of such Event of Default.
3. CONVERSION OF NOTE. This Note shall be convertible into validly issued, fully paid and non-assessable shares (the “Conversion Shares”) of Common Stock on the terms and conditions set forth in this Section 3.
(a) Conversion Right. The Holder shall be entitled at any time to convert any portion of the outstanding and unpaid Conversion Amount (as defined below) into Conversion Shares in accordance with Section 3(b), at the Conversion Rate (as defined below). The Company shall not issue any fraction of a Conversion Share upon any conversion. If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up or down to the nearest whole share. The Company shall pay any and all transfer, stamp, issuance and similar taxes, costs and expenses (including, without limitation, fees and expenses of its transfer agent that may be payable with respect to the issuance and delivery of Common Stock upon conversion of any Conversion Amount.
(b) Conversion Rate. The number of Conversion Shares issuable upon conversion of any Conversion Amount pursuant to Section 3(a) shall be determined by dividing (x) such Conversion Amount by (y) the Conversion Price (the “Conversion Rate”).
(i) “ConversionAmount” means the sum of (x) the portion of the Principal to be converted, prepaid or otherwise with respect to which this determination is being made and (y) all accrued and unpaid Interest with respect to such portion of the Principal amount.
(ii) “ConversionPrice” means, as of any Conversion Date or other date of determination, the greater of (i) $0.035 per share (the “FloorPrice”), which Floor Price shall not be adjusted for stock dividends, stock splits, stock combinations and other similar transactions and (ii) 20% discount to the Company’s lowest VWAP on any Trading Day during the ten Trading Days immediately prior to the date of conversion into shares of Common Stock.
(iii) “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. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.
(c) Mechanics of Conversion.
(i) Optional Conversion. To convert any Conversion Amount into Conversion Shares on any date (a “Conversion Date”), the Holder shall deliver to the Company (whether via facsimile, electronic mail or otherwise), for receipt on or prior to 11:59 p.m., New York time, on such date, a copy of an executed notice of conversion in the form attached hereto as Exhibit I (the “Conversion Notice”). If required pursuant to Section 3(c)(ii) hereof, within two Trading Days following a conversion of this Note as aforesaid, the Holder shall surrender this Note to a nationally recognized overnight delivery service for delivery to the Company (or an indemnification undertaking with respect to this Note in the case of its loss, theft or destruction as contemplated by Section 11(b)). On or before the second Trading Day following the date on which the Company has received a Conversion Notice (or such earlier date as required pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or other applicable law, rule or regulation for the settlement of a trade initiated on the applicable Conversion Date of such shares of Common Stock issuable pursuant to such Conversion Notice), the Company shall (1) provided that its transfer agent is participating in the DTC Fast Automated Securities Transfer Program, credit such aggregate number of shares of Common Stock to which the Holder shall be entitled pursuant to such conversion to the Holder’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system or (2) if its transfer agent is not participating in the DTC Fast Automated Securities Transfer Program, upon the request of the Holder, issue and deliver (via reputable overnight courier) to the address as specified in the Conversion Notice, a certificate, registered in the name of the Holder or its designee, for the number of shares of Common Stock to which the Holder shall be entitled pursuant to such conversion. If this Note is physically surrendered for conversion pursuant to Section 3(c)(ii) and the outstanding Principal of this Note is greater than the Principal portion of the Conversion Amount being converted, then the Company shall as soon as practicable and in no event later than two Trading Days after receipt of this Note and at its own expense, issue and deliver to the Holder (or its designee) a new Note (in accordance with Section 11(d)) representing the outstanding Principal not converted. The Person or Persons entitled to receive the Conversion Shares shall be treated for all purposes as the record holder or holders of such shares of Common Stock on the Conversion Date.
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(ii) Registration; Book-Entry. The Company shall maintain a register (the “Register”) for the recordation of the names and addresses of the Holder of the Note and the principal amount of the Note (the “Registered Note”). The entries in the Register shall be conclusive and binding for all purposes absent manifest error. The Company and the holder or holders of the Note shall treat each Person whose name is recorded in the Register as the owner of a Note for all purposes (including, without limitation, the right to receive payments of Principal and Interest hereunder) notwithstanding notice to the contrary. The Registered Note may, subject to Section 19 hereof, be assigned, transferred or sold in whole or in part only by registration of such assignment or sale on the Register. Upon its receipt of a written request to assign, transfer or sell all or part of the Registered Note by the holder thereof, the Company shall record the information contained therein in the Register and issue one or more new Registered Notes in the same aggregate principal amount as the principal amount of the surrendered Registered Note to the designated assignee or transferee pursuant to Section 11, provided that if the Company does not so record an assignment, transfer or sale (as the case may be) of all or part of any Registered Note within two Trading Days of such a request, then the Register shall be automatically deemed updated to reflect such assignment, transfer or sale (as the case may be). Notwithstanding anything to the contrary set forth in this Section 3, following conversion of any portion of this Note in accordance with the terms hereof, the Holder shall not be required to physically surrender this Note to the Company unless (A) the full Conversion Amount represented by this Note is being converted (in which event this Note shall be delivered to the Company following conversion thereof) or (B) the Holder has provided the Company with prior written notice (which notice may be included in a Conversion Notice) requesting reissuance of this Note upon physical surrender of this Note. The Holder and the Company shall maintain records showing the Principal and Interest converted and/or paid (as the case may be) and the dates of such conversions, and/or payments (as the case may be) or shall use such other method, reasonably satisfactory to the Holder and the Company, so as not to require physical surrender of this Note upon conversion. If the Company does not update the Register to record such Principal and Interest converted and/or paid (as the case may be) and the dates of such conversions, and/or payments (as the case may be) within two Trading Days of such occurrence, then the Register shall be automatically deemed updated to reflect such occurrence.
(d) Limitations on Conversions.
(i) Beneficial Ownership. The Company shall not effect the conversion of any portion of this Note, and the Holder shall not have the right to convert any portion of this Note pursuant to the terms and conditions of this Note and any such conversion shall be null and void and treated as if never made, to the extent that after giving effect to such conversion, the Holder together with the other Attribution Parties collectively would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such conversion. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by the Holder and the other Attribution Parties shall include the number of shares of Common Stock held by the Holder and all other Attribution Parties plus the number of shares of Common Stock issuable upon conversion of this Note with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock which would be issuable upon (A) conversion of the remaining, nonconverted portion of this Note beneficially owned by the Holder or any of the other Attribution Parties and (B) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any convertible notes or convertible preferred stock or warrants) beneficially owned by the Holder or any other Attribution Party subject to a limitation on conversion or exercise analogous to the limitation contained in this Section 3(d)(i). For purposes of this Section 3(d)(i), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act. For purposes of determining the number of outstanding shares of Common Stock the Holder may acquire upon the conversion of this Note without exceeding the Maximum Percentage, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (x) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the SEC, as the case may be, (y) a more recent public announcement by the Company or (z) any other written notice by the Company or its transfer agent, if any, setting forth the number of shares of Common Stock outstanding (the “Reported Outstanding Share Number”). If the Company receives a Conversion Notice from the Holder at a time when the actual number of outstanding shares of Common Stock is less than the Reported Outstanding Share Number, the Company shall notify the Holder in writing of the number of shares of Common Stock then outstanding and, to the extent that such Conversion Notice would otherwise cause the Holder’s beneficial ownership, as determined pursuant to this Section 3(d)(i), to exceed the Maximum Percentage, the Holder must notify the Company of a reduced number of shares of Common Stock to be purchased pursuant to such Conversion Notice. For any reason at any time, upon the written or oral request of the Holder, the Company shall within one (1) Business Day confirm orally and in writing or by electronic mail to the 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 Company, including this Note, by the Holder and any other Attribution Party since the date as of which the Reported Outstanding Share Number was reported. In the event that the issuance of shares of Common Stock to the Holder upon conversion of this Note results in the Holder and the other Attribution Parties being deemed to beneficially own, in the aggregate, more than the Maximum Percentage of the number of outstanding shares of Common Stock (as determined under Section 13(d) of the Exchange Act), the number of shares so issued by which the Holder’s and the other Attribution Parties’ aggregate beneficial ownership exceeds the Maximum Percentage (the “Excess Shares”) shall be deemed null and void and shall be cancelled ab initio, and the Holder shall not have the power to vote or to transfer the Excess Shares. For purposes of clarity, the Excess Shares shall not be deemed to be beneficially owned by the Holder for any purpose including for purposes of Section 13(d) or Rule 16a-1(a)(1) of the Exchange Act. No prior inability to convert this Note pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect to any subsequent determination of convertibility. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(d)(i) to the extent necessary to correct this paragraph (or any portion of this paragraph) which may be defective or inconsistent with the intended beneficial ownership limitation contained in this Section 3(d)(i) or to make changes or supplements necessary or desirable to properly give effect to such limitation. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 3(d)(i), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note and the provisions of this Section 3(d)(i) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Company. The limitation contained in this paragraph may not be waived and shall apply to a successor holder of this Note.
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(ii) Principal Market Regulation. The Company shall not issue any shares of Common Stock upon conversion of this Note or otherwise pursuant to the terms of this Note if the issuance of such shares of Common Stock would exceed the aggregate number of shares of Common Stock which the Company may issue upon conversion of the Note or otherwise pursuant to the terms of this Note without breaching the Company’s obligations under the rules or regulations of the Principal Market.
4. RIGHTS UPON EVENT OF DEFAULT.
(a) Event of Default. Each of the following events shall constitute an “Event of Default”:
(i) the Company’s default under this Note, including a failure to pay to the Holder any amount of Principal, Interest or other amounts when and as due under this Note, subject to a cure period of ten (10) Trading Days;
(ii) the Company fails to issue Common Stock without any restrictive legend or to remove any restrictive legend on any certificate (including by book entry) for any shares of Common Stock issued to the Holder pursuant to this Note within two (2) Trading Days after (A) receipt by the Company of an executed Conversion Notice or (B) if the Holder has shares with a restrictive legend upon written notice to remove such legend, in either case together with an opinion of counsel to the Holder that no restrictive legend is required; provided, that the Company shall have two (2) Trading Days to cure any such failure, unless otherwise then prohibited by applicable federal securities laws;
(iii) bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against the Company and, if instituted against the Company by a third party, shall not be dismissed within 30 days of their initiation;
(iv) the commencement by the Company of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the execution of a composition of debts, or the occurrence of any other similar federal, state or foreign proceeding, or the admission by it in writing of its inability to pay its debts generally as they become due, the taking of corporate action by the Company in furtherance of any such action or the taking of any action by any Person to commence a Uniform Commercial Code foreclosure sale or any other similar action under federal, state or foreign law;
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(v) the entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company of a voluntary or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree, order, judgment or other similar document adjudging the Company as bankrupt or insolvent, or approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal, state or foreign law or (iii) a decree, order, judgment or other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree, order, judgment or other similar document or any such other decree, order, judgment or other similar document unstayed and in effect for a period of 30 consecutive days;
(vi) other than as specifically set forth in another clause of this Section 4(a), the Company breaches any representation or warranty in any material respect (other than representations or warranties subject to materiality limitations, which may not be breached in any respect) or any covenant or other term or condition of this Note, except, in the case of a breach of a covenant or other term or condition that is curable, only if such breach remains uncured for a period of ten (10) consecutive Trading Days;
(vii) any provision of this Note 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 parties thereto, or the validity or enforceability thereof shall be contested by any party thereto, or a proceeding shall be commenced by the Company or any governmental authority having jurisdiction over it, seeking to establish the invalidity or unenforceability thereof, or the Company shall deny in writing that it has any liability or obligation purported to be created under this Note, subject to a cure period of ten (10) Trading Days; or
(viii) the suspension from trading or the failure of the Common Stock to be trading or listed (as applicable) on the Principal Market for a period of five (5) consecutive Trading Days.
(b) Notice of an Event of Default. Upon the occurrence of an Event of Default with respect to this Note, the Company shall within one (1) Business Day of its discovery of such Event of Default deliver written notice thereof via electronic mail and overnight courier (with next day delivery specified) to the Holder.
(c) Remedies. Upon the occurrence of an Event of Default and at any time thereafter, Holder may at its option: (a) declare the entire Principal Amount, together with all accrued Interest thereon, immediately due and payable at a rate of 115% of the outstanding Principal Amount, together with all accrued Interest thereon; and (b) exercise any or all of its rights, powers, or remedies under this Note or applicable law or available in equity.
5. ADJUSTMENTS OF THE CONVERSION PRICE.
(a) Adjustments for Recapitalization. If at any time or from time to time there shall be a recapitalization of the Common Stock, provision shall be made so that the Holder shall thereafter be entitled to receive upon conversion of the Note the number of shares of stock or other securities or property of the Company or otherwise, to which a holder of Common Stock deliverable upon conversion would have been entitled on such recapitalization. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5(a) with respect to the rights of the Holder after the recapitalization to the end that the provisions of this Section 5(a) (including, without limitation, provisions for adjustments of the Conversion Price and the number of shares of Common Stock issuable upon conversion of the Note) shall be applicable after that event as nearly equivalent as may be practicable.
(b) Adjustment for Stock Splits and Combinations. If the Company shall at any time or from time to time after the Issuance Date effect a subdivision of the outstanding Common Stock, the Conversion Price in effect immediately before that subdivision shall be proportionately decreased so that the number of shares of Common Stock issuable on conversion of this Note shall be increased in proportion to such increase in the aggregate number of shares of Common Stock outstanding. If the Company shall at any time or from time to time after the Issuance Date combine the outstanding shares of Common Stock, the Conversion Price in effect immediately before the combination shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of the Note shall be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection shall become effective at the close of business on the date the subdivision or combination becomes effective.
(c) Calculations. All calculations under this Section 5 shall be made by rounding to the nearest cent or the nearest 1/100^th^ 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.
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(d) Voluntary Adjustment by Company. The Company may at any time during the term of this Note, with the prior written consent of the Holder, reduce the then current Conversion Price of the Note to any amount and for any period of time deemed appropriate by the board of directors of the Company.
(e) Most Favored Nation Status. So long as this Note remains outstanding or the Holder holds any Conversion Shares, in the event that the Company sells or issues any equity securities or debt securities convertible into equity securities that contain terms or provisions more favorable to the purchaser thereof than the terms and provisions contained in this Note, the Purchase Agreement or any other document entered into in connection with the transactions contemplated in the Purchase Agreement, the Company shall, at the request of the Holder, promptly enter into amendments to this Note, the Purchase Agreement or any other document entered into in connection with the transactions contemplated in the Purchase Agreement with the Holder to provide for the same more favorable terms and provisions. In addition, so long as this Note remains outstanding or the Holder holds any Conversion Shares, in the event the Company issues or sells any notes, if the Holder then reasonably believes that the terms and conditions appurtenant to such issuance or sale provide anti-dilution or other full-ratchet protective provisions to such investors that were not granted to the Holder hereunder, upon notice to the Company by Holder within five (5) Trading Days after the Company’s disclosure of such issuance or sale, the Company shall amend the terms of this Note, so as to give Holder the benefit of such anti-dilution or other full-ratchet protective provisions.
6. SECURITY. This Note shall be secured by (a) the liens granted under that certain (i) Intellectual Property Security Agreement, dated of even date herewith, executed by the Company, Digital Power Corporation (“Digital Power”) and TOG Technologies, Inc. (“TOGT”) in favor of Holder (the “IP Security Agreement”), granting Holder a security interest in all the Company’s, Digital Power’s and TOGT’s intellectual property rights (the “IP Collateral”) and (ii) Security Agreement, dated of even date herewith, executed by the Company, Digital Power and TOGT in favor of Holder (the “Security Agreement”), granting Holder a security interest in all the Company’s, Digital Power’s and TOGT’s tangible and intangible assets, including, but not limited to, their intellectual property, receivables, equipment, inventory and equity interests (together with the IP Collateral, the “Collateral”) and (b) the pledge of one hundred percent (100%) of the capital stock of Digital Power and TOGT pursuant to that certain Pledge Agreement, dated of even date herewith, executed by the Company in favor of Holder (the “PledgeAgreement”). Other than Permitted Liens (as such term is defined in the Purchase Agreement), none of the Company’s capital stock or Indebtedness (as such term is defined in the Purchase Agreement) of the Company or any of its Subsidiaries shall rank senior to or on a parity with the Notes in right of payment. The covenants and agreements set forth in Article 4 of the Purchase Agreement are incorporated by reference herein and are for the benefit of the Holder. Any failure of the Company to comply with such covenants shall, for the avoidance of doubt, constitute an Event of Default.
7. NONCIRCUMVENTION. The Company hereby covenants and agrees that neither the Company nor any Subsidiary will, by amendment of the Company’s or any Subsidiary’s Charter Documents or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith carry out all of the provisions of this Note and take all action as may be required to protect the rights of the Holder of this Note. Without limiting the generality of the foregoing or any other provision of this Note, the Company (a) shall not increase the par value of any shares of Common Stock receivable upon conversion of this Note above the Conversion Price then in effect, and (b) shall take all such actions as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and non-assessable shares of Common Stock upon the conversion of this Note.
8. RESERVATION OF AUTHORIZED SHARES. So long as the Note remains outstanding, the Company shall at all times reserve at least 100% of the number of shares of Common Stock as shall from time to time be necessary to effect the conversion of the Note then outstanding (without regard to any limitations on conversions and assuming such Note remains outstanding until the Maturity Date) at the Conversion Price then in effect.
9. PREPAYMENT. Amounts due under this Note may be prepaid at any time without penalty.
10. AMENDING THE TERMS OF THIS NOTE. The prior written consent of the Holder shall be required for any change, waiver or amendment to this Note. Any change, waiver or amendment so approved shall be binding upon all existing and future holders of this Note; provided, however, that no such change, waiver or, as applied to the Note held by any particular holder of the Note, shall, without the written consent of that particular holder, (i) reduce the amount of Principal, reduce the amount of accrued and unpaid Interest, or extend the Maturity Date, of the Note, (ii) disproportionally and adversely affect any rights under the Note of any holder of any other portion of the Note; or (iii) modify any of the provisions of, or impair the right of any holder of the Note under this Section 10.
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11. REISSUANCE OF THIS NOTE.
(a) Transfer. If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note (in accordance with Section 11(d)), registered as the Holder may request, representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new Note (in accordance with Section 11(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section 3(c)(ii) following conversion or prepayment of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on the face of this Note.
(b) Lost, Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder a new Note (in accordance with Section 11(d)) representing the outstanding Principal. The Holder shall not be required to deliver a bond or other security.
(c) Note Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Note or Notes (in accordance with Section 11(d) and in principal amounts of at least $1,000) representing in the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.
(d) Issuance of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or in the case of a new Note being issued pursuant to Section 11(a) or Section 11(c), the Principal designated by the Holder which does not exceed the Principal remaining outstanding under this Note immediately prior to such issuance of a new Note), (iii) shall have an issuance date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and (v) shall represent accrued and unpaid Interest.
12. CONSTRUCTION; HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed against any such Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect the interpretation of, this Note. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Note instead of just the provision in which they are found. Unless expressly indicated otherwise, all section references are to sections of this Note.
13. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
14. NOTICES. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in writing with an e-mail copy to the last address provided by the Holder or its agents in writing to the Company. The Company shall provide the Holder with prompt written notice of all actions taken pursuant to this Note, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality of the foregoing, the Company will give written notice to the Holder (i) immediately upon any adjustment of the Conversion Price, setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least 15 days prior to the date on which the Company closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Stock, or (B) for determining rights to vote with respect to any transaction, dissolution or liquidation, provided in each case that such information shall be made known to the public prior to or in conjunction with such notice being provided to the Holder.
15. WAIVER OF NOTICE. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note.
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16. GOVERNING LAW. This Note shall be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, New York, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of the Holder. THE HOLDER HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO,AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS NOTEOR ANY TRANSACTION CONTEMPLATED HEREBY.
17. SEVERABILITY. If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Note so long as this Note as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
18. MAXIMUM PAYMENTS. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.
19. ASSIGNMENT. Neither this Note nor the rights contained herein may be assigned, by operation of law or otherwise, by either party without the prior written consent of the other; provided, however, that this Note and/or the rights contained herein may be assigned without the Company’s consent by the Holder to any of its Affiliates.
20. CERTAIN DEFINITIONS. For purposes of this Note, the following words and terms shall have the following meanings:
(a) “Affiliate” means, with respect to any person, any other person controlling, controlled by or under common control with such person. The term “Control” as used in the preceding sentence means, with respect to a corporation, the right to exercise, directly or indirectly, more than 10% of the voting rights attributable to the shares of the controlled corporation and, with respect to any person other than a corporation, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person.
(b) “AttributionParties” means, collectively, the following Persons and entities: (i) any investment vehicle, including, any funds, feeder funds or managed accounts, currently, or from time to time after the Issuance Date, directly or indirectly managed or advised by the Holder’s investment manager or any of its Affiliates or principals, (ii) any direct or indirect Affiliates of the Holder or any of the foregoing, (iii) any Person acting or who could be deemed to be acting as a Group together with the Holder or any of the foregoing and (iv) any other Persons whose beneficial ownership of the Company’s Common Stock would or could be aggregated with the Holder’s and the other Attribution Parties for purposes of Section 13(d) of the Exchange Act. For clarity, the purpose of the foregoing is to subject collectively the Holder and all other Attribution Parties to the Maximum Percentage, for each Conversion Notice tendered to the Company.
(c) “BusinessDay” means any day except a Saturday, Sunday or other day on which banking institutions in New York, New York are authorized or obligated by law or executive order to close.
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(d) “CharterDocuments” means the Articles of Incorporation, Bylaws or other similar governing document, as amended, of the Company or any Subsidiary, as applicable.
(e) “ClosingDate” shall mean the date the Company initially issued the Note.
(f) “CommonStock” means (i) the Company’s common stock, par value $0.001 per share, and (ii) any capital stock into which such Common Stock shall have been changed or any share capital resulting from a reclassification of such Common Stock.
(g) “Contracts” means any and all contracts, agreements, commitment, franchises, understandings, arrangements, leases, licenses, registrations, authorizations, easements, servitudes, rights of way, mortgages, bonds, notes, guaranties, encumbrances, evidence of indebtedness, approvals or other instruments or undertakings to which such person is a party or to which or by which such person or the property of such person is subject or bound, whether written or oral and whether or not entered into in the ordinary and usual course of the Person’s business, excluding any permits, provided that each such Contract shall provide for the payment of no less than $5,000.
(h) “GovernmentalAuthority” means any nation or country (including but not limited to the United States) and any commonwealth, territory or possession thereof and any government or governmental or regulatory, legislative, executive authority thereof, or commission, department or political subdivision thereof, whether federal, state, regional, municipal, local or foreign, or any department, board, bureau, agency, instrumentality or authority thereof, or any court or arbitrator (public or private), including, but not limited to, the Securities and Exchange Commission and FINRA.
(i) “Group” means a “group” as that term is used in Section 13(d) of the Exchange Act and as defined in Rule 13d-5 thereunder.
(j) “LegalRequirements” means any and all laws (statutory, judicial or otherwise), ordinances, regulations, judgments, orders, directives, injunctions, writs, decrees or awards of, and any Contracts with, any Governmental Authority, in each case as and to the extent applicable to such person or such person’s business, operations or Properties.
(k) “Liens” means any and all claims, liabilities and obligations and any and all liens, pledges, charges, mortgages, security interests, restrictions, leases, licenses, easements, liabilities, claims, encumbrances, preferences, priorities or rights of others of every kind and description.
(l) “Notes” means this Note and any other notes issued or issuable pursuant to the Purchase Agreement.
(m) “Person” means any individual, partnership, joint venture, firm, corporation, association, limited liability company, trust or other enterprise or any governmental or political subdivision or any agency, department or instrumentality thereof.
(n) “PrincipalMarket” means the OTC Pink Marketplace maintained by OTC Markets Group Inc.
(o) “Properties” means any and all properties and assets (real, personal or mixed, tangible or intangible) owned or used by the Company.
(p) “PurchaseAgreement” means that certain Securities Purchase Agreement dated of even date herewith by and between the Company and Holder.
(q) “SecuritiesAct” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(r) “Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof or (ii) if a limited liability company, partnership, association, or other business entity (other than a corporation), a majority of the partnership or other similar ownership interests thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof and for this purpose, a Person or Persons own a majority ownership interest in such a business entity (other than a corporation) if such Person or Persons shall be allocated a majority of such business entity’s gains or losses or shall be or control any managing director or general partner of such business entity (other than a corporation). The term “Subsidiary” shall include all Subsidiaries of such Subsidiary.
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(s) “TradingDay” means, as applicable, (x) with respect to all price or trading volume determinations relating to the Common Stock, any day on which the Common Stock is traded on the Principal Market, or, if the Principal Market is not the principal trading market for the Common Stock, then the principal securities exchange or securities market on which the Common Stock is then traded, provided that “Trading Day” shall not include any day on which the Common Stock is scheduled to trade on such exchange or market for less than 5 hours or any day that the Common Stock is suspended from trading during the final hour of trading on such exchange or market (or if such exchange or market does not designate in advance the closing time of trading on such exchange or market, then during the hour ending at 4:00 p.m., New York time) unless such day is otherwise designated as a Trading Day in writing by the Holder or (y) with respect to all determinations other than price determinations relating to the Common Stock, any day on which The OTC Pink Marketplace (or any successor thereto) is open for trading of securities.
[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the Issuance Date set out above.
| TURNONGREEN, INC. | |
|---|---|
| By: | |
| Name: | Amos Kohn |
| Title: | Chief Executive Officer |
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EXHIBITI
TURNONGREEN, INC.
CONVERSION NOTICE
Reference is made to the Secured Convertible Promissory Note (the “Note”) issued to the undersigned by TurnOnGreen, Inc., a Nevada corporation (the “Company”). In accordance with and pursuant to the Note, the undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of the Note indicated below into shares of common stock, par value $0.001 per share (the “Common Stock”), of the Company, as of the date specified below. Capitalized terms not defined herein shall have the meaning as set forth in the Note.
| Date of Conversion: | |
|---|---|
| Aggregate Principal to be converted: | |
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| Aggregate accrued and unpaid Interest to be converted: | |
| AGGREGATE CONVERSION AMOUNT<br> TO BE CONVERTED: | |
| Please confirm the following information: | |
| --- | |
| Conversion Price: | |
| --- | |
| Number of shares of Common Stock to be issued: | |
| --- | |
| Please issue the Common Stock into which the Note<br> is being converted to Holder, or for its benefit, as follows:<br><br> <br><br><br> <br>¨ Check<br> here if requesting delivery as a certificate to the following name and to the following address: | |
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| Issue to: | |
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| ¨ Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows: | |
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| DTC Participant: | |
| --- | |
| DTC Number: | |
| --- | |
| Account Number: | |
| --- | |
| Date: ______________ __, __________ | |
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| Name of Registered Holder | |
| By: | |
| Name: <br><br>Title: | |
| Tax ID:_____________________ | |
| Facsimile:___________________ |
E-mail Address:
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this “Agreement”) is entered into and effective as of October 29, 2025 (the “Execution Date”), by and between TurnOnGreen, Inc., a Nevada corporation (the “Company”), and SJC Lending LLC, a Delaware limited liability company (including its designees, successors and assigns, the “Purchaser”).
RECITALS
WHEREAS, the parties desire that, upon the terms and subject to the conditions contained herein, the Company shall issue to Purchaser, and Purchaser shall purchase from the Company, from time to time as provided herein, up to One Million Six Hundred Fifty Thousand Dollars ($1,650,000) of principal face amount of secured convertible promissory notes of the Company (“Note” or “Notes”), which Notes are convertible into Conversion Shares (as defined herein) pursuant to the terms and conditions set forth in the Notes, the form of which is annexed hereto as Exhibit A.
WHEREAS, the offer, sale and issuance of the Notes provided for herein are being made without registration under the Securities Act, in reliance upon the provisions of Section 4(a)(2) of the Securities Act and such other exemptions from the registration requirements of the Securities Act as may be available with respect to any or all of the purchases of the Notes to be made hereunder.
NOW, THEREFORE, in consideration of the premises, the mutual provisions of this Agreement, and other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, Company and Purchaser agree as follows:
ARTICLE I
DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings indicated in this Article I:
“Action” shall have the meaning ascribed to such term in Section 3.1(s).
“Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a Person, as such terms are used in and construed under Rule 144 under the Securities Act. With respect to Purchaser, without limitation, any Person owning, owned by, or under common ownership with Purchaser, and any investment fund or managed account that is managed on a discretionary basis by the same investment manager as Purchaser will be deemed to be an Affiliate.
“Agreement” has the meaning set forth in the preamble.
“Articles of Incorporation” means the Amended and Restated Articles of Incorporation of the Company, as amended to date.
“Bad Actor” shall have the meaning ascribed to such term in Section 3.1(y).
“Board of Directors” means the board of directors of the Company.
“Bylaws” means the Bylaws of the Company, as amended to date.
“Change of Control” means (a) other than a shareholder that holds such a position as of the Execution Date, if a Person comes to have beneficial ownership, control or direction over more than forty percent (40%) of the voting rights attached to any class of voting securities of the Company or any of its Subsidiaries, or (b) the sale or other disposition by the Company or any of its Subsidiaries in a single transaction, or in a series of transactions, of all or substantially all of the assets of the Company or its Subsidiaries.
“Code” means the Internal Revenue Code of 1986, as amended.
“Common Stock” means the Company’s common stock, par value $0.001 per share, and any other shares of stock issued or issuable with respect thereto (whether by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with a combination of shares, distribution, recapitalization, merger, consolidation, other corporate reorganization or other similar event with respect to the Common Stock).
“Common Stock Equivalents” means any securities of the Company or any of its 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.
“Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.
“Contracts” means any and all contracts, agreements, commitment, franchises, understandings, arrangements, leases, licenses, registrations, authorizations, easements, servitudes, rights of way, mortgages, bonds, notes, guaranties, Encumbrances, evidence of indebtedness, approvals or other instruments or undertakings to which such person is a party or to which or by which such person or the property of such person is subject or bound, whether written or oral and whether or not entered into in the ordinary and usual course of the Person’s business, excluding any Permits, provided that each such Contract shall provide for the payment of no less than $100,000.
“Conversion Shares” means the shares of Common Stock into which the Notes are convertible in accordance with the terms of the Note.
“Copyrights” shall have the meaning ascribed to such term in Section 3.1(nn)(i)(C).
“Disclosure Schedules” means the disclosure schedules of the Company delivered concurrently herewith, attached hereto, and incorporated herein by reference.
“DisqualificationEvent” shall have the meaning ascribed to such term in Section 3.1(y).
“DTC” means The Depository Trust Company, or any successor performing substantially the same function for Company.
“Encumbrances” means any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected, voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any of the foregoing in the future.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Exempt Issuance” means the issuance of (i) shares of Common Stock, restricted stock units or stock options (and Common Stock issued upon exercise of such securities) to employees, officers, consultants, advisors or directors of the Company in consideration of services to the Company pursuant to any stock or option plan duly adopted for such purpose by all of the members of the Board of Directors, (ii) the Conversion Shares issued hereunder and any Common Stock or other securities issued upon the conversion, exercise, or exchange of any Conversion Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion price of such securities, (iii) shares of Common Stock issued upon any anti-dilution adjustment to Common Stock and Common Stock Equivalents held by current unaffiliated security holders as of the date of this Agreement, provided that such anti-dilution adjustments are made pursuant to instruments or binding agreements issued and outstanding or in force as of the date of this Agreement and that such instruments or agreements have not been amended since the date of this Agreement to provide for new or additional anti-dilution rights or to increase the number of shares of Common Stock issuable upon any required anti-dilution adjustment, (iv) securities issued pursuant to any merger, acquisition, asset purchase or similar transaction approved by the Board of Directors or a duly authorized committee thereof, provided that any such issuance shall only be to a Person or Persons (or to the equity holders of a Person or Persons) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities and (v) securities issued pursuant to any purchase money equipment loan, capital leasing arrangement or debt financing from a commercial bank or similar financial institution.
“FCPA” means the Foreign Corrupt Practices Act of 1977, as amended.
“Fifth Tranche” has the meaning set forth in Section 2.2(a).
“Fifth Tranche Closing” means the Closing with respect to the Fifth Tranche.
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“Fifth Tranche Note” has the meaning set forth in Section 2.1.
“Fifth Tranche PurchasePrice” means Two Hundred Thousand Dollars ($200,000), payable by the Purchaser in cash.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Fourth Tranche” has the meaning set forth in Section 2.2(a).
“Fourth Tranche Closing” means the Closing with respect to the Fourth Tranche.
“Fourth Tranche Note” has the meaning set forth in Section 2.1.
“Fourth Tranche PurchasePrice” means Two Hundred Thousand Dollars ($200,000), payable by the Purchaser in cash.
“GAAP” means United States generally accepted accounting principles applied on a consistent basis during the periods involved.
“Governmental Authority” means any nation or country (including but not limited to the United States) and any commonwealth, territory or possession thereof and any government or governmental or regulatory, legislative, executive authority thereof, or commission, department or political subdivision thereof, whether federal, state, regional, municipal, local or foreign, or any department, board, bureau, agency, instrumentality or authority thereof, or any court or arbitrator (public or private), including, but not limited to, the SEC and FINRA.
“Indebtedness” shall have the meaning ascribed to such term in Section 3.1(v).
“Initial Note” shall have the meaning set forth in Section 2.1.
“Initial Tranche” shall have the meaning set forth in Section 2.2(a).
“Initial TrancheClosing” means the Closing with respect to the Initial Tranche.
“Initial TrancheClosing Date” means the date of the Initial Tranche Closing.
“Initial TranchePurchase Price” means Four Hundred Thousand Dollars ($400,000), payable by the Purchaser in cash.
“Intellectual PropertyRights” shall have the meaning ascribed to such term in Section 3.1(nn)(i).
“IP Security Agreement” means the Intellectual Property Security Agreement, dated of even date herewith, by and among the Company, Digital Power Corporation (“DigitalPower”), TOG Technologies, Inc. (“TOGT”) and the Purchaser.
“Issuer Covered Person” shall have the meaning ascribed to such term in Section 3.1(y).
“Knowledge” means, with respect to any Person, (a) such Person is actually aware of such fact or matter or (b) such Person should reasonably have been expected to discover or otherwise become aware of such fact or matter after reasonable investigation, and for purposes hereof it shall be assumed that such Person has conducted a reasonable investigation of the accuracy of the representations and warranties set forth herein.
“Legal Requirement” means any federal, state, local, municipal, foreign, multi-national or other law, common law, statute, constitutions, ordinances, rules, regulations, codes, Orders, or legally enforceable requirements enacted, issued, adopted, promulgated, enforced, ordered, or applied by any Governmental Authority.
“Legend Removal Date” shall have the meaning ascribed to such term in Section 3.2(g).
“Liability” means any liability, obligation or indebtedness of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including any liability for Taxes.
“Liens” means any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected, voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any of the foregoing in the future.
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“Loss” or “Losses” means any and all Liability, damages, fines, fees, penalties and expenses whether or not arising out of litigation, including without limitation, interest, reasonable expenses of investigation, court costs, reasonable out-of-pocket fees and expenses of attorneys, accountants and other experts or other reasonable out-of-pocket expenses of litigation or other legal proceedings, incurred in connection with the rightful enforcement of rights under this Agreement against any party hereto, and whether or not arising out of third party claims against an indemnified party.
“Marks” shall have the meaning ascribed to such term in Section 3.1(nn)(i)(A).
“Material AdverseEffect” means any material adverse effect on (i) the legality, validity or enforceability of any Transaction Document, (ii) the results of operations, assets, business, prospects or financial condition of the Company and the Subsidiaries, taken as a whole, or (iii) the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document.
“Material Agreement” means any material loan agreement, financing agreement, equity investment agreement or securities instrument to which Company is a party, any agreement or instrument to which Company and Purchaser or any Affiliate of the Purchaser is a party, and any other material agreement listed, or required to be listed, on any of Company’s reports filed or required to be filed with the SEC, including without limitation Forms 10-K, 10-Q and 8-K.
“Material Permits” shall have the meaning ascribed to such term in Section 3.1(bb).
“Maximum Investment” means One Million Five Hundred Thousand Dollars ($1,500,000).
“Money LaunderingLaws” shall have the meaning ascribed to such term in Section 3.1(ee).
“OFAC” shall have the meaning ascribed to such term in Section 3.1(dd).
“Off-balance SheetArrangement” shall have the meaning ascribed to such term in Section 3.1(mm).
“Officer’sCertificate” has the meaning set forth in the Section 2.2(b)(i) hereof.
“Order” means any order, writ, assessment, decision, injunction, decree, ruling, or judgment of a Governmental Authority or arbitrator, whether temporary, preliminary, or permanent.
“Patents” shall have the meaning ascribed to such term in Section 3.1(nn)(i)(B).
“Permits” means any and all permits, rights, approvals, licenses, authorizations, legal status, orders or Contracts under any Legal Requirement or otherwise granted by any Governmental Authority.
“Permitted Liens” means the individual and collective reference to the following: (a) Liens for Taxes, assessments and other governmental charges or levies not yet due or Liens for Taxes, assessments and other governmental charges or levies being contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance with GAAP; (b) Liens imposed by law which were incurred in the ordinary course of the Company’s business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in the ordinary course of the Company’s business, and which (x) do not individually or in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the Company and its consolidated Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing for the foreseeable future the forfeiture or sale of the property or asset subject to such Lien; (c) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations; and (d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature that are not past due, in each case in the ordinary course of business, but excluding any contract for the payment of money.
“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.
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“Pledge Agreement” means the Pledge Agreement, dated of even date herewith, by and between the Company and the Purchaser.
“Principal Market” means the OTC Pink Marketplace maintained by OTC Markets Group Inc.
“Principal MarketRules” means the rules and regulations of the Principal Market.
“Properties” means any and all properties and assets (real, personal or mixed, tangible or intangible) owned or used by the Company.
“Registration Statement” has the meaning set forth in Section 4.11.
“Required Approvals” means any approvals that may be required hereunder.
“Rights in Mask Works” shall have the meaning ascribed to such term in Section 3.1(nn)(i)(D).
“Rule 144” means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule 144 may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect.
“SEC” means the United States Securities and Exchange Commission.
“SEC Documents” has the meaning set forth in Section 3.1(g).
“Second Tranche Note” has the meaning set forth in Section 2.1.
“Second Tranche Closing” means the Closing with respect to the Second Tranche.
“Second Tranche ClosingDate” means the date of the Second Tranche Closing.
“Second Tranche PurchasePrice” means Two Hundred Thousand Dollars ($200,000), payable by the Purchaser in cash.
“Secretary’sCertificate” has the meaning set forth in Section 2.2(b)(ii) hereof.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agreement” means the Security Agreement, dated of even date herewith, by and between the Company, Digital Power, TOGT and the Purchaser.
“Seventh Tranche” has the meaning set forth in Section 2.2(a).
“Seventh TrancheClosing” means the Closing with respect to the Seventh Tranche.
“Seventh TrancheNote” has the meaning set forth in Section 2.1.
“Seventh TranchePurchase Price” means One Hundred Thousand Dollars ($100,000), payable by the Purchaser in cash.
“Short Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
“Sixth Tranche” has the meaning set forth in Section 2.2(a).
“Sixth Tranche Closing” means the Closing with respect to the Sixth Tranche.
“Sixth Tranche Note” has the meaning set forth in Section 2.1.
“Sixth Tranche PurchasePrice” means Two Hundred Thousand Dollars ($200,000), payable by the Purchaser in cash.
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“Subsequent Note” means the Notes to be issued at each Subsequent Tranche Closing.
“Subsequent Tranche” shall have the meaning set forth in Section 2.2(a).
“Subsequent TrancheClosing” means each of Second Tranche Closing, Third Tranche Closing, Fourth Tranche Closing, Fifth Tranche Closing, Sixth Tranche Closing and Seventh Tranche Closing, as applicable.
“Subsidiary” means any Person the Company owns or controls, or in which the Company, directly or indirectly, owns a majority of the capital stock or similar interest that would be disclosable pursuant to Regulation S-K, Item 601(b)(21).
“Tax” means any and all taxes, charges, fees, levies or other assessments, including, without limitation, local and/or foreign income, net worth, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, share capital, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, service, service use, transfer, registration, recording, ad-valorem, value-added, alternative or add-on minimum, estimated, or other taxes, assessments or charges of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.
“Tax Return” means any federal, state, local and foreign tax return, report or similar statement required to be filed with respect to any Tax (including any attached schedules), including, without limitation, any information return, claim for refund, amended return or declaration of estimated Tax.
“Taxing Authority” means the Internal Revenue Service and any other Governmental Authority responsible for the administration of any Tax.
“Third Tranche” has the meaning set forth in Section 2.2(a).
“Third Tranche Closing” means the Closing with respect to the Third Tranche.
“Third Tranche Note” has the meaning set forth in Section 2.1.
“Third Tranche PurchasePrice” means Two Hundred Thousand Dollars ($200,000), payable by the Purchaser in cash.
“Trade Secrets” shall have the meaning ascribed to such term in Section 3.1(nn)(i)(E).
“Trading Day” means any day on which the Common Stock is traded on the Trading Market; provided that it shall not include any day on which the Common Stock is (a) scheduled to trade for less than 5 hours, or (b) suspended from trading.
“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, the New York Stock Exchange, OTCQB, OTCQX, or the OTC Pink (or any successors to any of the foregoing).
“Tranche” has the meaning set forth in Section 2.1.
“Tranche Closing” has the meaning set forth in Section 2.2(a).
“Tranche PurchasePrices” means, collectively, the Initial Tranche Purchase Price, the Second Tranche Purchase Price, the Third Tranche Purchase Price, the Fourth Tranche Purchase Price, the Fifth Tranche Purchase Price, the Sixth Tranche Purchase Price and the Seventh Tranche Purchase Price.
“Transaction Documents” means this Agreement, the Notes, the Security Agreement, the IP Security Agreement, the Pledge Agreement and the other agreements and documents referenced herein, and the exhibits and schedules hereto and thereto.
“Transfer Agent” means Computershare Inc. or any successor transfer agent for the Common Stock.
“Variable Rate Transaction” has the meaning set forth in Section 4.7(a).
“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), or (b) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchaser of a majority in interest of the Conversion Shares then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
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ARTICLE II
PURCHASE AND SALE
2.1 Agreementto Purchase. Subject to the terms and conditions herein and the satisfaction of the conditions to closing set forth in this Article II, the Company hereby agrees to issue to the Purchaser and the Purchaser hereby agrees to purchase from the Company: (a) a Note in the principal face amount of $440,000 (the “Initial Note”) on the Initial Tranche Closing Date, (b) a Note in the principal face amount of $220,000 one month after the Initial Tranche Closing Date (the “Second Tranche Note”), (c) a Note in the principal face amount of $220,000 two months after the Initial Tranche Closing Date (the “Third Tranche Note”), (d) a Note in the principal face amount of $220,000 three months after the Initial Tranche Closing Date (the “Fourth TrancheNote”), (e) a Note in the principal face amount of $220,000 four months after the Initial Tranche Closing Date (the “FifthTranche Note”), (f) a Note in the principal face amount of $220,000 five months after the Initial Tranche Closing Date (the “Sixth Tranche Note”), and (g) a Note in the principal face amount of $110,000 six months after the Initial Tranche Closing Date (the “Seventh Tranche Note”), each (each, a “Tranche”) in accordance with Section 2.2 below and, in consideration for the Notes, the Purchaser agrees to furnish to the Company at each Closing the applicable Tranche Purchase Price, provided that, in the aggregate, the Purchaser shall not pay more than the Maximum Investment.
2.2 Closing;Conditions to Closing; Mechanics of Closing.
(a) Closing. The purchase of Notes hereunder shall occur in seven (7) Tranche closings, representing the Initial Tranche Closing, the Second Tranche Closing, the Third Tranche Closing, the Fourth Tranche Closing, the Fifth Tranche Closing, the Sixth Tranche Closing and the Seventh Tranche Closing, in the amounts set forth in Section 2.1 (each, a “Tranche Closing”) which shall occur when, with respect to (i) the Initial Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(c) have been satisfied or waived (the “InitialTranche”), (ii) the Second Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(d) have been satisfied or waived (the “Second Tranche”), (iii) the Third Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(d) have been satisfied or waived (the “Third Tranche”), (iv) the Fourth Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(d) have been satisfied or waived (the “Fourth Tranche”), (v) the Fifth Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(d) have been satisfied or waived (the “Fifth Tranche”), (vi) the Sixth Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(d) have been satisfied or waived (the “SixthTranche”), and (vii) the Seventh Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(d) have been satisfied or waived (the “Seventh Tranche”, and together with the Second Tranche, Third Tranche, Fourth Tranche, Fifth Tranche and Sixth Tranche the “Subsequent Tranches”). The date on which a Tranche Closing occurs is referred to herein as a “Tranche Closing Date.”
(b) Purchaser Conditions to Closing. The obligations of the Purchaser hereunder in connection with each Tranche Closing are subject to the following conditions being satisfied or waived:
(i) each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the applicable Tranche Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the applicable Tranche Closing Date, including, without limitation the issuance of all Conversion Shares prior to the date of such Tranche Closing as required by this Section 2.2 and the Transaction Documents and the Company has a sufficient number of duly authorized Conversion Shares reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents and Purchaser shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Tranche Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser in the form acceptable to Purchaser (the “Officer’s Certificate”);
(ii) the Company shall have delivered to Purchaser a certificate, in the form previously provided to the Company by the Purchaser, executed by the Secretary of the Company and dated as of the applicable Tranche Closing Date, as to (A) the resolutions as adopted by the Board of Directors authorizing the entering into the Transaction Documents and the transactions envisioned thereby, which resolutions shall have remained in full force and effect, (B) the Articles of Incorporation of the Company (reflecting the filed copy) as in effect at the applicable Closing and (C) the Bylaws of the Company as in effect at the applicable Closing (the “Secretary’s Certificate”);
(iii) the Company shall have delivered to Purchaser a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State of such jurisdiction of formation as of a date within ten (10) days of the applicable Tranche Closing Date;
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(iv) as of the applicable Tranche Closing Date, trading in the Common Stock shall be quoted on the Principal Market and shall not have been suspended by the SEC or the Principal Market and, at any time prior to the applicable Tranche Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, and without regard to any factors unique to the Purchaser, makes it impracticable or inadvisable to purchase the Notes at the Closing;
(v) as of the applicable Tranche Closing Date, the Company shall be in good standing with its independent registered public accounting firm;
(vi) neither the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition, shall have suffered a Material Adverse Effect;
(vii) the Company shall not be exposed to any additional regulatory enforcement action beyond those disclosed in the SEC Documents; and
(viii) any other conditions contained herein or the other Transaction Documents.
(c) Purchaser Conditions to the Initial Tranche Closing. The obligations of the Purchaser hereunder in connection with the Initial Tranche Closing are subject to the conditions set forth in Section 2.2(b) and Section 2.2(e) being satisfied or waived and to the following conditions being satisfied or waived:
(i) there shall have been no breach of any obligations, covenants and agreements under the Transaction Documents and no existing event which, with the passage of time or the giving of notice, would constitute a breach under the Transaction Documents; and
(ii) the Company shall have delivered the Company Initial Closing Documents to the Purchaser.
(d) Purchaser Conditions to the Subsequent Tranche Closings. The obligations of the Purchaser hereunder in connection with each Subsequent Tranche Closing are subject to the conditions set forth in Section 2.2(b) and Section 2.2(e) being satisfied or waived and to the following conditions being satisfied or waived:
(i) the Company shall have delivered the Company Subsequent Closing Documents to the Purchaser;
(ii) solely with respect to the Second Tranche, the Company shall have filed the Registration Statement with the SEC; and
(iii) with respect to the Third Tranche and each other Subsequent Tranche following the Third Tranche, the Company shall have caused the Registration Statement to have been declared effective by the SEC, the Registration Statement shall be in effect at the time of the Third Tranche Closing and available for the issuance of and resale of the Conversion Shares issuable through the Seventh Tranche and the date that all Conversion Shares have been sold by the Purchaser, and the Registration Statement shall not be subject to any stop order suspending the effectiveness of the Registration Statement.
(e) Company Conditions to Closing. The obligations of the Company hereunder in connection with each Tranche Closing are subject to the following conditions being satisfied or waived:
(i) the accuracy in all material respects as of each Tranche Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all obligations, covenants and agreements of the Purchaser required by this Agreement to be performed at or prior to each Tranche Closing Date shall have been performed;
(iii) the delivery by the Purchaser of the applicable Tranche Purchase Price; and
(iv) the delivery by the Purchaser of the Purchaser Closing Documents.
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(f) Purchaser’s Right to Accelerate Payments. Notwithstanding the foregoing dates set forth above applicable to the various Tranche Purchase Prices, the Purchaser shall have the ability, exercisable in its sole discretion, to purchase any principal amount of Notes in advance of the foregoing dates.
(g) Reserved.
(h) Documents to be Delivered at the Initial Tranche Closing by the Company. The Initial Tranche Closing shall be conditioned upon the delivery by the Company to Purchaser of each of the following (the “Company Initial Closing Documents”) on or before the Initial Tranche Closing Date:
(i) this Agreement, duly executed by the Company;
(ii) the Initial Tranche Note, duly executed by the Company;
(iii) the Officer’s Certificate, executed by an officer of the Company;
(iv) the Secretary’s Certificate, executed by the Secretary of the Company;
(v) the Security Agreement, duly executed by the Company, Digital Power and TOGT;
(vi) the IP Security Agreement, duly executed by the Company, Digital Power and TOGT;
(vii) the Pledge Agreement, duly executed by the Company;
(viii) a Certificate of Good Standing of the Company from the Secretary of State of the State of Nevada;
(ix) the written confirmation by the Company to the Purchaser that the applicable Required Approvals, if any, have been obtained;
(x) a Grant of Security Interest for Copyrights, duly executed by the Company, Digital Power and TOGT;
(xi) a Grant of Security Interest for Trademarks, duly executed by the Company, Digital Power and TOGT; and
(xii) all documents, instruments and other writings required to be delivered by the Company to Purchaser on or before the applicable Initial Tranche Closing Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated herein.
(i) Documents to be Delivered at each Subsequent Tranche Closing by the Company. Each Subsequent Tranche Closing shall be conditioned upon the delivery by the Company to Purchaser of each of the following (the “Company Subsequent Closing Documents”) on or before the applicable Tranche Closing Date:
(i) the Officer’s Certificate, executed by an officer of the Company;
(ii) the Secretary’s Certificate, executed by the Secretary of the Company;
(iii) a Certificate of Good Standing of the Company from the Secretary of State of the State of Nevada; notwithstanding the foregoing, once the Company has delivered to the Purchaser evidence that the Certificate of Good Standing for a particular fiscal quarter is valid, this Section 2.2(i)(iii) shall no longer apply;
(iv) the Subsequent Note purchased in the Subsequent Tranche Closing duly executed by the Company;
(v) the written confirmation by the Company to the Purchaser that any applicable Required Approvals, if any, have been obtained;
(vi) solely with respect to the Second Tranche, the written confirmation by the Company to the Purchaser that the Registration Statement has been filed with the SEC;
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(vii) with respect to the Third Tranche and each other Subsequent Tranche following the Third Tranche, the written confirmation by the Company to the Purchaser that the Registration Statement has been declared effective by the SEC and remains effective; and
(viii) all documents, instruments and other writings required to be delivered by the Company to Purchaser on or before the applicable Subsequent Tranche Closing Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated herein.
(j) Documents to be Delivered at the Initial Tranche Closing Date by the Purchaser. The Initial Tranche Closing Date shall be conditioned upon the delivery, unless otherwise provided below, by Purchaser to the Company of each of the following (the “Purchaser Closing Documents”) on or before the Initial Tranche Closing Date:
(i) this Agreement, duly executed by the Purchaser;
(ii) the Pledge Agreement, duly executed by the Purchaser;
(iii) the Security Agreement, duly executed by the Purchaser;
(iv) the IP Security Agreement, duly executed by the Purchaser;
(v) a Grant of Security Interest for Copyrights, duly executed by the Purchaser; and
(vi) a Grant of Security Interest for Copyrights, duly executed by the Purchaser.
(k) Mechanics of Closing. Subject to such conditions set forth in this Agreement, each Tranche Closing shall occur by 5:00 p.m. Eastern time, on the dates set forth in Section 2.1, at the offices of the Company or electronically by the exchange of PDF copies of documents. On or before any Tranche Closing Date, the Purchaser shall deliver to the Company the amount of the applicable Tranche Purchase Price for such Tranche, with any cash portion to be delivered in cash or immediately available funds as consideration for the purchase of the Notes pursuant to wire instructions delivered to the Purchaser by the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representationsand Warranties of the Company. Except as set forth under the corresponding section of the Disclosure Schedules, which shall be deemed a part hereof and which shall not contain any material non-public information, the Company hereby represents and warrants to, and as applicable covenants with, the Purchaser as of the date hereof and as of each Tranche Closing:
(a) Organization and Qualification. The Company and each of the direct and indirect subsidiaries of the Company listed on Schedule 3.1(a) (the “Subsidiaries”) is an entity duly organized, validly existing and in good standing under the laws of its state of incorporation or formation. The Company and each of its Subsidiaries is duly qualified to do business, and is in good standing in the states required due to (i) the ownership or lease of real or personal property for use in the operation of the Company’s business or (ii) the nature of the business conducted by the Company, except where the failure to so qualify would not, individually or in the aggregate, have a Material Adverse Effect. The Company and each of its Subsidiaries has all requisite power, right and authority to own, operate and lease its properties and assets, to carry on its business as now conducted, to execute, deliver and perform its obligations under this Agreement and the other Transaction Documents to which it is a party, and to carry out the transactions contemplated hereby and thereby, subject to the Required Approvals. All actions on the part of the Company and its officers and directors necessary for the authorization, execution, delivery and performance of this Agreement and the other Transaction Documents, the consummation of the transactions contemplated hereby and thereby, and the performance of all of the Company’s obligations under this Agreement and the other Transaction Documents have been taken or will be taken prior to the Closing. This Agreement has been, and the other Transaction Documents to which the Company is a party on each Tranche Closing will be, duly executed and delivered by the Company, and this Agreement is, and each of the other Transaction Documents to which it is a party on each Tranche Closing will be, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, reorganization, insolvency, moratorium and similar laws of general application relating to or affecting the enforcement of rights of creditors, and except as enforceability of the obligations hereunder are subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law). All of the Subsidiaries and the Company’s ownership interests therein are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens except Permitted Liens, and subject to the Required Approvals, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
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(b) Authority. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement and each of the other Transaction Documents and to issue the Notes and Conversion Shares in accordance with the terms hereof and thereof. The execution and delivery of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance of the Conversion Shares, have been duly authorized by the Board of Directors and no further filing (other than a Form D with the SEC and any other filings as may be required by any state securities agencies, the Form 8-K (as hereinafter defined)), consent, or authorization is required by the Company, the Board of Directors or the Company’s stockholders. This Agreement and the other Transaction Documents have been duly executed and delivered by the Company, and constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws.
(c) Capitalization. The capitalization of the Company is as set forth in Schedule 3.1(c). As of the date hereof, the Company has reserved from its duly authorized capital stock 47,142,858 shares of Common Stock for issuance as Conversion Shares. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly issued and are fully paid and non-assessable. Except as disclosed in SEC Documents and/or in Schedule 3.1(c), hereof: (i) none of the Company’s or any Subsidiary’s share capital is subject to preemptive rights or any other similar rights or any liens or Encumbrances suffered or permitted by the Company or any subsidiary; (ii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional share capital of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any share capital of the Company or any of its Subsidiaries; (iii) except for all debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments set forth on Schedule 3.1(c), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound; (iv) other than with respect to the current indebtedness of the Company or any of its Subsidiaries, there are no financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act; (vi) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Conversion Shares; (viii) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its Subsidiaries has any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect.
(d) Consents. Neither the Company nor any of its Subsidiaries is required to obtain any consent from, authorization or order of, or make any filing (other than the Form 8-K) or registration with, any court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings (other than the Form 8-K) and registrations which the Company or any of its subsidiaries is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior to the applicable Tranche Closing Date and neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated by the Transaction Documents. The Company is not in violation of the requirements of the Principal Market and has no knowledge of any facts or circumstances which could reasonably lead to delisting or suspension of the Common Stock in the foreseeable future.
(e) Conflicts; Non-Contravention; No Violations. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby will not (A) result in a violation of the Articles of Incorporation or articles of incorporation or other organizational documents of any of its Subsidiaries, any share capital of the Company or any of its Subsidiaries or Bylaws or the bylaws of any of its Subsidiaries, (B) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (C) result in a violation of any law, rule, regulation, order, judgment or decree, including foreign, federal and state securities laws and regulations and the rules and regulations of the Principal Market applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected except, in the case of clause (B) or (C) above, to the extent such violations that could not reasonably be expected to have a Material Adverse Effect.
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(f) Taxes Related to the Conversion Shares. On each date the Company issues Conversion Shares to the Purchaser, all share transfer or other taxes (other than income or similar taxes) which are required to be paid in connection with the issuance of the Conversion Shares hereunder on such date will be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.
(g) SEC Documents; Financial Statements. The Company has, during the preceding 12 months, filed with the SEC all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated in such or subsequent financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). There is no event, pending event or threatened event that could result in the Company not filing with the SEC all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable, in compliance in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to such filings.
(h) No Material Non-Public Information. The Company confirms that neither it nor any other Person acting on its behalf has provided the Purchaser or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the Transaction Documents. The Company understands and confirms that the Purchaser will rely on the foregoing representations in effecting transactions in securities of the Company. To the knowledge of the Company after reasonable inquiry, all disclosures provided to the Purchaser regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries is true and correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
(i) Valid Issuance of Conversion Shares. The issuance of the Notes and Conversion Shares have been duly authorized and, the Conversion Shares upon issuance in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable and free and clear of all liens, Encumbrances and rights of refusal of any kind.
(j) Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any of its Subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchaser shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(k) Acknowledgement of Dilution. The Company acknowledges and agrees that (i) the issuance of the Conversion Shares pursuant to this Agreement may have a dilutive effect, which may be substantial, (ii) neither the Company nor any of the Company’s Affiliates has or will provide the Purchaser with any material non-public information regarding the Company or its securities, and (iii) the Purchaser has no obligation of confidentiality to the Company and may sell any of its Conversion Shares issued pursuant to this Agreement at any time but subject to compliance with applicable laws and regulations.
(l) Status of the Purchaser. The Company acknowledges and agrees that with respect to this Agreement and the transactions contemplated hereby, (i) the Purchaser is acting solely in an arm’s length capacity, (ii) the Purchaser does not make and has not made any representations or warranties, other than those specifically set forth in this Agreement, (iii) except as set forth in this Agreement, the Company’s obligations hereunder are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of any claim the Company may have against the Purchaser, (iv) the Purchaser has not and is not acting as a legal, financial, accounting or tax advisor to the Company, or agent or fiduciary of the Company, or in any similar capacity, and (v) any statement made by the Purchaser or any of the Purchaser’s representatives, agents or attorneys is not advice or a recommendation to the Company.
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(m) Listing and Maintenance Requirements; Principal Market Regulation. The Common Stock is registered pursuant to Section 12(g) of the Exchange Act, and the Company has taken no action designed to, or which to its Knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the SEC is contemplating terminating such registration. Except as disclosed in SEC Documents, the Company has not, in the twelve (12) months preceding the date hereof, received notice from any Principal Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Principal Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
(n) Shell Company Status. The Company is not an issuer identified in, or subject to, Rule 144(i) under the Securities Act.
(o) SEC and OTC Matters. The Company’s Common Stock is quoted on the Principal Market (or traded on other exchange or market reasonably acceptable to the Purchaser). No suspension of trading of the Company’s Common Stock is in effect.
(p) DTC Eligibility. The Company, through its Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer (“FAST”) Program and utilizes DTC’s Deposit/Withdrawal at Custodian (“DWAC”) service, and the shares of Common Stock may be issued and transferred electronically to third parties via DTC’s DWAC service. The Company has not, in the 12 months preceding the date of this Agreement, received any notice from DTC to the effect that a suspension of, or restriction on, accepting additional deposits of the shares of Common Stock, or electronic trading or settlement services with respect to the shares of Common Stock are being imposed or are contemplated by DTC.
(q) No Anti-Takeover Provisions. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, or other similar antitakeover provision under the Certificate of Incorporation, Bylaws or other organizational documents of the Company, as currently in effect, or the laws of the jurisdiction of its incorporation or otherwise which is or could become applicable as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Notes and Conversion Shares hereunder and the Purchaser’s ownership of such Notes and Conversion Shares, together with all other securities now or hereafter owned or acquired by the Purchaser. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Conversion Shares or a change in control of the Company or any of its Subsidiaries. Until the earlier of the time that the Purchaser no longer beneficially owns any Conversion Shares, the Board of Directors shall not adopt any anti-takeover provision, including without limitation any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Common Stock, that would limit the ability of Purchaser to acquire or hold Notes or Conversion Shares in accordance with this Agreement, without the Purchaser’s written consent.
(r) Blue Sky Matters. The Company shall take such action as the Purchaser shall reasonably determine is necessary in order to qualify the Conversion Shares issuable to the Purchaser hereunder under applicable securities or “blue sky” laws of the states of the United States for the issuance to the Purchaser hereunder and for resale by the Purchaser to the public (or to obtain an exemption from such qualification). Without limiting any other obligation of the Company hereunder, the Company shall timely make all filings and reports relating to the offer and issuance of such Conversion Shares required under all applicable securities laws (including, without limitation, all applicable federal securities laws and all applicable state securities or “blue sky” laws), and the Company shall comply with all applicable federal, state, local and foreign laws, statutes, rules, regulations and the like relating to the offering and issuance of such Conversion Shares to the Purchaser.
(s) Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the Knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties except as set forth in Schedule 3.1(s), or against or affecting the Company’s current or former officers or directors in their capacity as such, before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Conversion Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect, and neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the Knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company that is likely to lead to action that can reasonably be expected to result in a Material Adverse Effect. There has not been, and to the Knowledge of the Company, there is currently no pending or contemplated, any investigation by the SEC involving the Company or any current or former director or officer of the Company. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
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(t) No Defaults. The Company is not in default under, or has given to others any rights of termination, amendment, acceleration or cancellation of, any material agreement, indenture or instrument (which the Company would be required to file pursuant to Item 601(a) of Regulation S-K promulgated under the Securities Act) to which the Company or any of its Subsidiaries is a party.
(u) Tax Matters.
(i) All Tax Returns required to be filed by or on behalf of the Company have been duly and timely filed with the appropriate Taxing Authority in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns are true, complete and correct in all material respects. All Taxes payable by or on behalf of the Company (whether or not shown on any Tax Return) have been fully and timely paid. With respect to any period for which Tax Returns have not yet been filed or for which Taxes are not yet due or owing, the Company has made due and sufficient accruals for such Taxes in the GAAP Financial Statements and in its books and records. All required estimated Tax payments sufficient to avoid any underpayment penalties or interest have been made by or on behalf of the Company. The Company has complied in all material respects with all applicable Legal Requirements relating to the payment and withholding of Taxes in connection with amounts paid or owing to any employee, independent contractor, creditor, equity owner or other third party and has duly and timely withheld and paid over to the appropriate Taxing Authority all amounts required to be so withheld and paid under all applicable Legal Requirements.
(ii) The Company has not (i) requested any extension of time within which to file any Tax Return, which Tax Return has since not been filed, (ii) granted any extension for the assessment or collection of Taxes, which Taxes have not since been paid, or (iii) granted to any Person any power of attorney that is currently in force with respect to any Tax matter. The Company is not a foreign person within the meaning of Sections 7701(a)(1) and 7701(a)(5) of the Code. The Company has never been a shareholder of any consolidated, combined, affiliated or unitary group of corporations for any Tax purposes. The Company is not a party to any Tax allocation or Tax sharing agreement nor does it have any liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof of any analogous or similar provision under Legal Requirement), as a transferee or successor, by contract, or otherwise.
(iii) The Company has not made any payments, is not obligated to make any payments, or is not a party to any agreement that obligates it to make any payments that are not deductible under Section 280G of the Code. The Company has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(a)(ii) of the Code.
(v) Indebtedness and Other Contracts. Except as set forth on Schedule 3.1(v), neither the Company nor any of its Subsidiaries (i) has any outstanding Indebtedness (as defined below), (ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) is in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (iv) is a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principles, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above.
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(w) Absence of Certain Changes. Other than as disclosed in the SEC Documents, since the date of the Company’s most recent audited financial statements contained in a Form 10-K, there has been no material adverse change and no material adverse development in the business, assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries. Except as disclosed in the SEC Documents, since the date of the Company’s most recent audited financial statements contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary course of business or (iii) made any capital expenditures, individually or in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries, on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3(w), “Insolvent” means, with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total indebtedness, (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe that they will incur debts that would be beyond their ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.
(x) No Undisclosed Events, Liabilities, Developments or Circumstances. Since June 30, 2025, except as set forth in the SEC Documents: (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any material liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in the SEC Documents, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate. The Company does not have pending before the SEC any request for confidential treatment of information. Except for the issuance of the Notes and Conversion Shares contemplated by this Agreement and the intended dividend, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, properties, operations, assets or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least two Trading Days prior to the date that this representation is made.
(y) No Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the transactions contemplated hereby, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
(z) General Solicitation. None of the Company, any of its Affiliates or any person acting on behalf of the Company or such Affiliate will solicit any offer to buy or offer or sell the Conversion Shares by means of any form of general solicitation or general advertising within the meaning of Regulation D, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(aa) Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to ERISA, taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.
(bb) Regulatory Permits. The Company and the Subsidiaries possess all approvals, certificates, authorizations and Permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Documents, except where the failure to possess such Permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material Permit.
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(cc) Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property (if any) owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance with GAAP and the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries is held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance, or where the failure of a lease to be enforceable would not result in a Material Adverse Effect.
(dd) Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s Knowledge, any director, officer, agent, employee or affiliate of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(ee) Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material respects with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the Knowledge of the Company or any Subsidiary, threatened.
(ff) No Integrated Transaction. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Conversion Shares to be integrated with prior offerings by the Company for purposes of the Securities Act which would require the registration of any such securities under the Securities Act.
(gg) Sarbanes-Oxley; Internal Accounting Controls. Except as set forth in the SEC Documents, the Company and the Subsidiaries are in material compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof and as of the Initial Tranche Closing Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that, except as set forth in the SEC Documents: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as set forth in the SEC Documents, the Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms.
(hh) Disclosure. All of the disclosure furnished by or on behalf of the Company to the Purchaser regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, when taken together as a whole, is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that the Purchaser neither makes nor has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth herein.
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(ii) Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the Knowledge of the Company or any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, has: (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any provision of FCPA.
(jj) Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations under any of the Transaction Documents.
(kk) Material Agreements. Except for the Transaction Documents (with respect to clause (i) only) or as set forth on Schedule 3.1(kk) hereto, or as would not be reasonably likely to have a Material Adverse Effect, (i) the Company and each of its Subsidiaries have performed all obligations required to be performed by them to date under any Material Agreement, (ii) neither the Company nor any of its Subsidiaries has received any notice of default under any Material Agreement and, (iii) to the Company’s Knowledge, neither the Company nor any of its Subsidiaries is in default under any Material Agreement now in effect.
(ll) Promotional Stock Activities. Neither the Company, its officers, its directors, nor any Affiliates or agents of the Company have engaged in any stock promotional activity that could give rise to a complaint, inquiry, or trading suspension by the SEC alleging (i) a violation of the anti-fraud provisions of the federal securities laws, (ii) violations of the anti-touting provisions, (iii) improper “gun-jumping”, or (iv) promotion without proper disclosure of compensation.
(mm) No “Off-balance Sheet Arrangements.” Neither the Company nor any of its Affiliates is involved in any Off-balance Sheet Arrangements. For purposes hereof an “Off-balance Sheet Arrangement” means any transaction or contract to which an entity unconsolidated with the Company or any of its Affiliates is a party and under which either the Company or any such Affiliate has: (i) any obligation under a guarantee contract pursuant to which the Company or any of its Affiliates could be required to make payments to the guaranteed party, including any standby letter of credit, market value guarantee, performance guarantee, indemnification agreement, keep-well or other support agreement; (ii) any retained or contingent interest in assets transferred to such unconsolidated entity that serves as credit, liquidity or market risk support to the entity in respect of such assets; (iii) any variable interest held in such unconsolidated entity where such entity provides financing, liquidity, market risk or credit risk support to, or engages in leasing, hedging or research and development services with the Company of any of its Affiliates; and (iv) any liability or obligation of the same nature as those described in clauses (i) through (iii) of this sentence even if of a different name (whether absolute, accrued, contingent or otherwise) that would not be required to be reflected in the Company or any of its Affiliates’ financial statements.
(nn) Intellectual Property.
(i) The term “Intellectual Property Rights” includes:
(A) the name of the Company and each Subsidiary, all fictional business names, trading names, registered and unregistered trademarks, service marks, and applications of the Company and each Subsidiary (collectively, “Marks”);
(B) all patents, patent applications, and inventions and discoveries that may be patentable of the Company and each Subsidiary (collectively, “Patents”);
(C) all copyrights in both unpublished works and published works of the Company and each Subsidiary (collectively, “Copyrights”);
(D) all rights in mask works of the Company and each Subsidiary (collectively, “Rights in Mask Works”); and
(E) all know-how, trade secrets, confidential information, customer lists, software, technical information, data, process technology, plans, drawings, and blue prints (collectively, “Trade Secrets”); owned, used, or licensed by the Company and each Subsidiary as licensee or licensor.
(ii) Agreements. Except as set forth on Schedule 3.1(nn), there are no outstanding and, to the Company’s Knowledge, no threatened disputes or disagreements with respect to any agreements relating to any Intellectual Property Rights to which the Company is a party or by which the Company is bound.
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(iii) Know-How Necessary for the Business. The Intellectual Property Rights are all those necessary for the operation of the Company’s businesses as it is currently conducted. The Company is the owner of all right, title, and interest in and to each of the Intellectual Property Rights, free and clear of all liens, security interests, charges, encumbrances, equities, and other adverse claims, and has the right to use all of the Intellectual Property Rights. To the Company’s Knowledge, no employee of the Company has entered into any contract that restricts or limits in any way the scope or type of work in which the employee may be engaged or requires the employee to transfer, assign, or disclose information concerning his work to anyone other than the Company.
(iv) Patents. The Company is the owner of, or has acquired the right and maintains the right to use, all right, title and interest in and to each of the Patents, free and clear of all Liens and other adverse claims. All of the issued Patents are currently in compliance with formal legal requirements (including payment of filing, examination, and maintenance fees and proofs of working or use), are valid and enforceable, and are not subject to any maintenance fees or taxes or actions falling due within ninety days after the Initial Tranche Closing Date. No Patent has been or is now involved in any interference, reissue, reexamination, or opposition proceeding. To the Company’s Knowledge: (1) there is no potentially interfering patent or patent application of any third party, and (2) no Patent is infringed or has been challenged or threatened in any way. To the Company’s Knowledge, none of the products manufactured and sold, nor any process or know-how used, by the Company infringes or is alleged to infringe any patent or other proprietary right of any other Person.
(v) Trademarks. The Company is the owner of all right, title, and interest in and to each of the Marks, free and clear of all Liens and other adverse claims. All Marks that have been registered with the United States Patent and Trademark Office are currently in compliance with all formal legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications), are valid and enforceable, and are not subject to any maintenance fees or taxes or actions falling due within ninety days after the Initial Tranche Closing Date. No Mark has been or is now involved in any opposition, invalidation, or cancellation and, to the Company’s Knowledge, no such action is threatened with respect to any of the Marks. To the Company’s Knowledge: (1) there is no potentially interfering trademark or trademark application of any third party, and (2) no Mark is infringed or has been challenged or threatened in any way. To the Company’s Knowledge, none of the Marks used by the Company infringes or is alleged to infringe any trade name, trademark, or service mark of any third party.
(vi) Copyrights. The Company is the owner of all rights, title, and interest in and to each of the Copyrights, free and clear of all Liens and other adverse claims. All the Copyrights have been registered and are currently in compliance with formal requirements, are valid and enforceable, and are not subject to any maintenance fees or taxes or actions falling due within ninety days after the date of the Initial Tranche Closing Date. To the Company’s Knowledge, no Copyright is infringed or has been challenged or threatened in any way. To the Company’s Knowledge, none of the subject matter of any of the Copyrights infringes or is alleged to infringe any copyright of any third party or is a derivative work based on the work of a third party. All works encompassed by the Copyrights have been marked with the proper copyright notice.
(vii) Trade Secrets. With respect to each Trade Secret, the documentation relating to such Trade Secret is current, accurate, and sufficient in detail and content to identify and explain it and to allow its full and proper use without reliance on the knowledge or memory of any individual. The Company has taken all reasonable precautions to protect the secrecy, confidentiality, and value of its Trade Secrets. The Company has good title and an absolute and exclusive right to use the Trade Secrets. The Trade Secrets are not part of the public knowledge or literature, and, to the Company’s Knowledge, have not been used, divulged, or appropriated either for the benefit of any Person (other the Company) or to the detriment of the Company. No Trade Secret is subject to any adverse claim or has been challenged or threatened in any way.
(oo) Full Disclosure. No representation or warranty by the Company in this Agreement and no statement contained in the Disclosure Schedules to this Agreement or any certificate or other document furnished or to be furnished to the Purchaser pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances in which they are made, not misleading.
(pp) No Other Representations or Warranties. Except for the representations and warranties made by the Company in this Section 3.1, neither the Company nor any other Person makes any representation or warranty with respect to the Company or its Affiliates or Subsidiaries or their respective business, operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to the Purchaser or any of its Affiliates or representatives of any documentation, forecasts or other information with respect to any one or more of the foregoing. Except for the representations and warranties contained in this Section 3.1, the Company hereby disclaims all liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to the Purchaser or any of its Affiliates or representatives (including any opinion, information, projection, or advice that may have been or may be provided to the Purchaser or by any director, officer, employee, agent, consultant, or representative of the Company or any of its Affiliates). The Company makes no representations or warranties to the Purchaser or any of its Affiliates or representatives regarding the probable success or profitability of the Company.
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3.2 Representationsand Warranties of the Purchaser. The Purchaser hereby represents and warrants to, and as applicable covenants with, the Company as of the date hereof and as of each Tranche Closing:
(a) Authority. The Purchaser has all necessary company power and authority to execute and deliver the Transaction Documents, to perform its obligations hereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Transaction Documents by the Purchaser, and the consummation by the Purchaser of the transactions contemplated hereby have been duly and validly authorized by its managing member, and no other company proceedings on the part of the Purchaser are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement and the Transaction Documents have been duly validly executed and delivered by the Purchaser and, assuming due authorization, execution and delivery by the Company, constitute a legally valid and binding obligation of the Purchaser, each enforceable against the Purchaser in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity, whether considered in a proceeding in equity or at law).
(b) No Conflict. None of the execution, delivery or performance of the Transaction Documents by the Purchaser, the consummation by the Purchaser of the transactions contemplated by this Agreement, or compliance by the Purchaser with any of the provisions of this Agreement will (with or without notice or lapse of time, or both): (a) conflict with or violate any provision of the organizational or governing documents of the Purchaser, or (b) assuming that all consents, approvals, authorizations and permits described in Section 3.1(d) have been obtained and all filings and notifications described in Section 3.1(d) have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any law applicable to the Purchaser, except, with respect to clause (b), for any such conflicts, violations, consents, breaches, losses, defaults, other occurrences which, individually or in the aggregate, have not had a material adverse effect on the ability of the Purchaser to perform its obligations hereunder.
(c) Information in the Form 8-K and Registration Statement. The information supplied by the Purchaser in writing expressly for inclusion or incorporation by reference in the Form 8-K, the Registration Statement, and any amendment thereof, will not, on the date submitted to the Company, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading; provided, that such information shall only consist the name, address and other information that is required to be provided in the Form 8-K and Registration Statement for purposes of identifying the Purchaser.
(d) No Litigation. There are no actions, suits, arbitrations, mediations, proceedings or claims pending or, to the knowledge of the Purchaser, threatened against Purchaser that seeks to restrain or enjoin the consummation of the transactions contemplated hereby.
(e) Securities Act Representations.
(i) Restricted Shares. The Purchaser represents that it understands that except as provided herein, the Notes and the Conversion Shares to be sold to it pursuant to this Agreement will not be registered pursuant to the registration requirements of the Securities Act and that the resale of such Notes and Conversion Shares is subject to certain restrictions hereunder and under federal and state securities laws. The Purchaser represents that it is acquiring such Notes and Conversion Shares for its own account, not as a nominee or agent, and not with a view to the distribution thereof in violation of applicable securities laws. The Purchaser further represents that it has been advised and understands that to the extent such Notes and Conversion Shares have not been registered under the Securities Act, such Notes and Conversion Shares must be held indefinitely unless (i) the resale of such Notes and Conversion Shares has been registered under the Securities Act, (ii) a sale of such Notes and Conversion Shares is made in conformity with the holding period, volume and other limitations of Rule 144 promulgated by the SEC under the Securities Act, or (iii) in the opinion of counsel reasonably acceptable to the Company, some other exemption from registration is available with respect to any proposed sale, transfer or other disposition of such Notes and Conversion Shares.
(ii) Legend. The Purchaser represents that it has been advised and understands that, subject to applicable securities laws, stop transfer instructions will be given to the Company’s Transfer Agent with respect to the Notes and Conversion Shares and that a legend, substantially in the form provided for in Section 3.2(f) hereof, setting forth the restrictions on transfer will be set forth on the certificates for the Notes and Conversion Shares or any substitutions therefor.
(iii) Accredited Investor. The Purchaser is an “accredited investor” (as such term is defined in Regulation D under the Securities Act).
(iv) Affiliate Status. As of the date of this Agreement and during the 90 calendar days prior to the date of this Agreement, neither the Purchaser nor any Affiliate thereof is or was an officer, director, or 10% or more stockholder of the Company.
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(v) Certain Fees. The Purchaser represents that it has not paid, and shall not pay, any commissions or other remuneration, directly or indirectly, to any third party for the solicitation of any transaction contemplated by this Agreement and no additional consideration from the Purchaser was received or will be received by the Company for the Notes and Conversion Shares.
(vi) Absence of Reliance. Purchaser understands and acknowledges that the issuance and transfer to it of the Notes and Conversion Shares has not been reviewed by the SEC or any state securities regulatory authority because such transaction is intended to be exempt from the registration requirements of the Securities Act, and applicable state securities laws. Purchaser understands that the Company is relying upon the truth and accuracy of, and Purchaser’s compliance with, the representations, warranties, acknowledgments and understandings of Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Conversion Shares.
(vii) Status of Purchaser. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of Purchaser’s investment in the Company through Purchaser’s acquisition of the Notes and Conversion Shares. The Purchaser is able to bear the economic risk of its investment in the Company through Purchaser’s acquisition of the Notes and Conversion Shares for an indefinite period of time. The Purchaser can afford a complete loss of such investment and has no need for liquidity in such investment. Purchaser acknowledges that it has prior investment experience and that it recognizes and fully understands the highly speculative nature of Purchaser’s investment in the Company pursuant to its acquisition of the Notes and Conversion Shares. The Purchaser acknowledges that it, either alone or together with its professional advisors, has the capacity to protect its own interests in connection with the transactions contemplated hereby.
(viii) No General Solicitation. The Purchaser represents and warrants that it was not induced to invest in the Company (pursuant to the issuance to it of the Notes and Conversion Shares) by any form of general solicitation or general advertising, including, but not limited to, the following: (a) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media (including via the Internet) or broadcast over the news or radio or (b) any seminar or meeting whose attendees were invited by any general solicitation or advertising.
(ix) No Short Sales. Purchaser agrees that neither it nor its Affiliates, agents or representatives shall at any time engage in any Short Sales of, or sell put options or similar instruments with respect to, the Common Stock or any other of the Company’s securities.
(x) Acknowledgement of Receipt of Information. The Purchaser has had an opportunity to ask questions and receive answers and materials, and to discuss the business of the Company and its Subsidiaries and related matters, with certain key officers of the Company and its Subsidiaries regarding the transactions contemplated hereby. The Purchaser hereby acknowledges and agrees that other than the Company’s representations and warranties set forth in Section 3.1 hereof, neither the Company nor any of its representatives makes or has made any representation or warranty, express or implied, at law or in equity, with respect to the business of the Company or any Subsidiary thereof nor with respect to the Conversion Shares.
(f) The Purchaser understands and agrees that the certificates for
(i) the Notes shall bear substantially the following legend:
“NEITHER THE ISSUANCE AND 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 (THE “SECURITIES ACT”), 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 TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS SECURED CONVERTIBLE PROMISSORY NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS SECURED CONVERTIBLE PROMISSORY NOTE, INCLUDING SECTION 3(b) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED BY THIS SECURED CONVERTIBLE PROMISSORY NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(ii) OF THIS SECURED CONVERTIBLE PROMISSORY NOTE.”
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(ii) the Conversion Shares shall bear substantially the following legend:
“NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), 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 OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT.”
(g) Certificates evidencing Notes or Conversion Shares shall not be required to contain the legend set forth in Section 3.2(f) above or any other legend (i) while a registration statement covering the resale of such Notes or Conversion Shares is effective under the Securities Act, (ii) following any sale of such Notes or Conversion Shares pursuant to Rule 144 (assuming the transferor is not an affiliate of the Company), (iii) if such Notes or Conversion Shares are eligible to be sold, assigned or transferred under Rule 144 (provided that the Purchaser provides the Company with reasonable assurances that such Conversion Shares are eligible for sale, assignment or transfer under Rule 144 which shall not include an opinion of the Purchaser’s counsel), (iv) in connection with a sale, assignment or other transfer (other than under Rule 144), provided that the Purchaser provides the Company with an opinion of counsel, in a generally acceptable form, to the effect that such sale, assignment or transfer of the Notes or Conversion Shares may be made without registration under the applicable requirements of the Securities Act or (v) if such legend is not required under applicable requirements of the Securities Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the SEC). The Company agrees that following such time as such legend is no longer required under this Section 3.2(g), it will, no later than 9:00 AM (New York City time) the next Trading Day following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Conversion Shares issued with a restrictive legend (such Trading Day, the “Legend Removal Date”), instruct the Transfer Agent to deliver or cause to be delivered to the Purchaser a certificate representing such shares of Common Stock that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Article III. Certificates for the Conversion Shares that are subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser.
(h) If a legend is not required pursuant to the foregoing, the Company shall no later than three (3) Trading Days following the delivery by the Purchaser to the Company or the Transfer Agent (with notice to the Company) of a legended certificate representing such Notes or Conversion Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, if applicable), together with any other deliveries from the Purchaser as may be required above in this Section 3.2(h), as directed by the Purchaser, either: (A) provided that the Transfer Agent is participating in the DTC Fast Automated Securities Transfer Program, credit the aggregate number of Conversion Shares to which the Purchaser shall be entitled to the Purchaser’s or its designee’s balance account with DTC through its Deposit and Withdrawal at Custodian system or (B) if the Transfer Agent is not participating in the DTC Fast Automated Securities Transfer Program, issue and deliver (via reputable overnight courier) to the Purchaser, a certificate representing such Conversion Shares that is free from all restrictive and other legends, registered in the name of the Purchaser or its designee. The Company shall be responsible for any transfer agent fees, fees of legal counsel to the Company or DTC fees with respect to any issuance of Conversion Shares or the removal of any legends with respect to any Conversion Shares in accordance herewith.
(i) The Purchaser understands that neither the SEC nor any state securities commission has approved the Notes or Conversion Shares or passed upon or endorsed the merits of the Transaction. There is no government or other insurance covering any of the Notes or Conversion Shares.
(j) The Purchaser has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like relating to this Agreement or the transactions contemplated hereby.
(k) The Purchaser and the Purchaser’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, the “Advisors”) has such knowledge and experience in legal, financial and business matters as to be capable of evaluating the merits and risks of a prospective investment in the Notes and Conversion Shares. The Purchaser has not been organized solely for the purpose of acquiring the Notes and Conversion Shares. The Purchaser is not relying on the Company or any of its employees, agents, or advisors with respect to the legal, tax, economic and related considerations of an investment in Notes and Conversion Shares, and the Purchaser has relied on the advice of, or has consulted with, only its own Advisors.
(l) No oral or written representations have been made, or oral or written information furnished, to the Purchaser or its Advisors, if any, in connection with the transactions contemplated by this Agreement that are in any way inconsistent with the information contained herein.
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(m) The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the transactions contemplated by this Agreement, and has so evaluated the merits and risks of such investment. The Purchaser has not authorized any person or entity to act as its Purchaser Representative (as that term is defined in Regulation D of the General Rules and Regulations under the Securities Act) in connection with the transactions contemplated by this Agreement. The Purchaser is able to bear the economic risk of an investment in the Conversion Shares and, at the present time, is able to afford a complete loss of such investment.
ARTICLE IV
COVENANTS
4.1 NegativeCovenants. Until the later of the date all the Notes have been (i) repaid in full or (ii) fully converted into shares of Common Stock pursuant to the terms of this Agreement and the Notes, the Company shall not, and shall not permit any Subsidiary to, do any of the following without the Purchaser’s prior written consent:
(a) (i) alter or change adversely the powers, preferences or rights given to the Notes or alter or amend this Agreement, (ii) amend its Articles of Incorporation or other applicable governing documents in any manner that, in the Purchaser’s sole and absolute discretion, adversely affects any rights of the holders of Notes or the Conversion Shares, (iii) whether or not prohibited by the terms of the Notes, circumvent a right or preference of the Notes, or (iv) enter into any agreement with respect to any of the foregoing;
(b) sell, transfer or otherwise dispose of any material assets required for the operations of the Company or its Subsidiaries and the Company’s or its Subsidiaries’ business except in the ordinary course of business, consistent with past practices;
(c) make or declare, directly or indirectly, any dividend (in cash, stock, return of capital, or any other form of assets) on, or make any other payment or distribution with respect to any securities;
(d) except in connection with (i) the incurrence of indebtedness in connection with any one or more issuance of the Notes, (ii) indebtedness existing as of the Execution Date, or (iii) mortgage indebtedness used to finance the acquisition, construction and development (both horizontal and vertical infrastructure and improvements) of properties in the ordinary course of the business of the Company and its Subsidiaries, incur indebtedness for borrowed money, purchase money indebtedness or lease obligations that would be required to be capitalized on a balance sheet prepared in accordance with GAAP, or guaranty the obligations of any other Person, in an aggregate amount at any time outstanding in excess of $25,000 in any individual transaction or $50,000 in the aggregate;
(e) invest in, purchase or acquire, directly or indirectly, in one or a series of related transactions, any assets or capital stock of any Person, wherein the aggregate purchase price or other consideration payable for such assets or capital stock shall exceed $25,000 in any one transaction or $50,000, in the aggregate;
(f) permit Liens to exist on its assets and properties, other than (i) Liens outstanding on the Execution Date, or (ii) Liens represented by mortgage indebtedness used to finance the acquisition, construction and development (both horizontal and vertical infrastructure and improvements) of properties in the ordinary course of the business of the Company and its Subsidiaries, to secure indebtedness of the Company or any of its Subsidiaries, in an aggregate amount at any time outstanding in excess of $25,000 in any individual transaction or $50,000 in the aggregate;
(g) except for an Exempt Issuance, take any action to authorize, create or issue any securities;
(h) enter into any transaction with any of the Company’s or its Subsidiaries’ officers, directors or employees or any Person, directly or indirectly, controlled by or under common control with the Company, its Subsidiaries or any of their officers, directors or employees (a “Related Party”) including, without limitation, any transaction for the purchase, sale or exchange of property or the rendering of any service to or by any Related Party, except for transactions entered into in the ordinary course with employees that are approved by the Company’s Board of Directors including the unanimous approval of the independent members thereof;
(i) except as set forth on Schedule 4.1(i), effect or permit, or offer or agree to effect or permit, a Change of Control with respect to the Company or any Subsidiary;
(j) discontinue the businesses in which it is engaged as of the Execution Date, or engage in any business other than the businesses in which it is engaged as of the Execution Date or any businesses or activities substantially similar or related thereto or ancillary to the operation thereof;
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(k) sell, lease, transfer, mortgage, pledge, otherwise encumber or dispose of any of its material assets (other than sales of products to customers in the ordinary course), waive or release any rights of material value, or cancel, compromise, release or assign any indebtedness owed to it or any claims held by it;
(l) materially increase in any manner the compensation or fringe benefits of any of its directors, officers, employees, including any increase of pension or retirement allowance, life insurance premiums or other benefit payments to any such directors, officers or employees, or commit itself to any employment agreement or employment arrangement with or for the benefit of any officer;
(m) fail to deliver to the Purchaser quarterly unaudited financial statements within forty-five (45) days after the applicable quarter ends and annual audited financial statements within ninety (90) days after the fiscal year-end;
(n) fail to remain in good standing with all applicable regulatory authorities, its independent registered public accounting firm and its outside counsel;
(o) set aside assets for a sinking or other similar fund for the purchase, redemption, or retirement of, or redeem, purchase, retire, or otherwise acquire any shares of the Common Stock or of any other capital stock of the Company or its Subsidiaries, whether now or hereafter outstanding; except for the repurchase from employees of the Company, pursuant to the provisions of the Company’s 2023 Stock Incentive Plan, upon such employees’ termination of employment with the Company, of shares of Common Stock issued pursuant to stock option exercises by or underlying stock option grants to such employees pursuant to the terms of stock option agreements between the Company and such employees;
(p) take any action to alter the number of members of the Board of the Company or any Subsidiary, or designate classes of directors other than as required by the federal securities laws or the rules of any registered national securities association applicable to the Company;
(q) take any action to remove or replace, or in any way alter the powers of the control person of any Subsidiary;
(r) reclassify the shares of Common Stock or any other shares or any class or series of capital stock hereafter which in any manner adversely affects the holder of Notes;
(s) except for Exempt Issuances, issue any shares of Common Stock or of any other capital stock of the Company or its Subsidiaries or other securities convertible into or exercisable or exchangeable for shares of Common Stock or of any other capital stock of the Company or its Subsidiaries;
(t) assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation or make any loans or advances to any individual, firm or corporation;
(u) except as contemplated hereby, make any direct or indirect redemption, purchase or other acquisition of any shares of its capital stock or declare, set aside or pay any dividend or distribution (whether in cash, capital stock or property) with respect to its capital stock;
(v) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfers or otherwise, or by the purchase of any property of any other individual, firm or corporation, other than in the ordinary and usual course of its business;
(w) amend the Articles of Incorporation or Bylaws;
(x) violate any Legal Requirement applicable to the Company and/or its business;
(y) merge or consolidate with, or purchase a substantial portion of the assets of, or by any other manner acquire or combine with any business or any corporation, partnership, limited liability company, association or other business organization or division thereof or otherwise acquire or agree to acquire any assets which are material to the Company, its business, financial condition or results of operations, except in the ordinary course of business;
(z) pay any accrued fees or salaries to officers, directors, stockholders, or Affiliates, except fees and salaries payable in accordance with present practices of the Company;
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(aa) organize any Subsidiaries, acquire any capital stock or other equity securities of any corporation or acquire any equity or ownership interest in any business;
(bb) prepay any obligation having a fixed maturity of more than ninety (90) days from the date such obligation was issued or incurred; or
(cc) enter into an agreement to do any of the things described in clauses (a) through (bb) of this Section 4.1.
4.2 TransferRestrictions.
(a) The Notes and Conversion Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Notes and Conversion Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Purchaser or in connection with a pledge as contemplated in Section 4.2(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Notes or Conversion Shares under the Securities Act. As a condition of such transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and the other applicable Transaction Documents and shall have the rights and obligations of the Purchaser under this Agreement.
(b) The Company acknowledges and agrees that the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Notes or Conversion Shares to a financial institution that is an “accredited investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and the other applicable Transaction Documents and, if required under the terms of such arrangement, the Purchaser may transfer pledged or secured Notes or Conversion Shares into the name of the pledgees or secured parties, in their respective capacities as such. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Notes or Conversion Shares may reasonably request in connection with a pledge or transfer of the Notes or Conversion Shares.
(c) In lieu of delivering physical certificates representing the unlegended shares, upon request of the Purchaser, so long as the certificates therefor do not bear a legend and the Purchaser is not obligated to return such certificate for the placement of a legend thereon and provided it is commercially reasonable for the Company to do so, the Company shall cause its transfer agent to electronically transmit the unlegended shares by crediting the account of Purchaser’s prime broker with the Depository Trust Company through its DWAC system, provided that the Common Stock is DTC eligible and the Company’s transfer agent participates in the Deposit Withdrawal at Custodian system and such Conversion Shares are Conversion Shares. Such delivery must be made on or before the Legend Removal Date.
(d) In the event the Purchaser shall request delivery of unlegended shares and the Company is required to deliver such unlegended shares, the Company may not refuse to deliver unlegended shares based on any claim that the Purchaser or anyone associated or affiliated with the Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of the Purchaser in the amount of the greater of (i) 100% of the amount of the aggregate stated value of the Conversion Shares which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the dispute and the proceeds of which shall be payable to the Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.
4.3 Furnishingof Information. For as long as the Purchaser owns Notes, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act. Upon the request of the Purchaser, the Company shall deliver to the Purchaser a written certification of a duly authorized officer as to whether it has complied with the preceding sentence. For as long as the Purchaser owns Notes, if the Company is not required to file reports pursuant to such laws, it will prepare and furnish to the Purchaser and make publicly available in accordance with Rule 144(c) such information as is required for the Purchaser to sell the Conversion Shares under Rule 144. The Company further covenants that it will take such further action as any holder of Notes may reasonably request, all to the extent required from time to time to enable such Person to sell such Conversion Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144.
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4.4 Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Notes in a manner that would require the registration under the Securities Act of the sale of the Notes to Purchaser or that would be integrated with the offer or sale of the Notes for purposes of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
4.5 SecuritiesLaws Disclosure; Publicity. The Company shall timely file a Current Report on Form 8-K (the “Form 8-K”) as required by this Agreement, and may issue a press release, in each case reasonably acceptable to Purchaser, disclosing the material terms of the transactions contemplated hereby. The Company and Purchaser shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor Purchaser shall issue any such press release or otherwise make any such public statement without the prior consent of the Company, with respect to any such press release of Purchaser, or without the prior consent of Purchaser, with respect to any such press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law or Principal Market Rules, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Purchaser, or include the name of the Purchaser in any filing with the SEC or any regulatory agency or Principal Market, without the prior written consent of the Purchaser, except (i) as contained in the Form 8-K and press release described above, (ii) as required by federal securities law in connection with any registration statement under which the securities are registered, (iii) to the extent such disclosure is required by law or Principal Market Rules, in which case the Company shall provide Purchaser with prior notice of such disclosure, or (iv) to the extent such disclosure is required in any SEC Document filed by the Company.
4.6 Rightof First Refusal. From the Execution Date until the date that is one (1) year from the Execution Date, without the affirmative consent or approval of the Purchaser, the Company grants the Purchaser the right of first refusal with respect to any investment proposed to be made by any individual or entity for each and every future public or private equity offering, including a debt instrument convertible into equity of the Company during such period (an “Offering”). The Company shall notify the Purchaser of its intention to pursue any such Offering, including the material terms thereof, by providing written notice thereof to the Purchaser. If the Purchaser fails to accept in writing any such proposal for such Offering within three (3) days after receipt of a written notice in accordance with this Section 4.6 from the Company, then the Purchaser will have no claim or right with respect to any such Offering contained in any such notice. The Purchaser shall have five (5) days thereafter to close upon that financing transaction. If, thereafter, such proposal is modified in any material respect, the Company will adopt the same procedure as with respect to the original proposed Offering and the Purchaser shall have the right of first refusal with respect to such revised proposal.
4.7 VariableRate Transactions.
(a) From the date hereof until the earlier of (i) such date when the Notes are no longer outstanding or (ii) one (1) year after the Execution Date (the “Prohibition Period”), the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction absent the prior written consent of the Purchaser. “Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity 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 debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit or an “at-the-market offering” whereby the Company may issue securities at a future determined price, regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently canceled. The Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
(b) Section 4.7(a) shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an Exempt Issuance; notwithstanding the foregoing, in the event that the Company becomes eligible to file a “shelf” registration statement on Form S-3 for a primary offering during the Prohibition Period, the Company shall be permitted to file such Form S-3 and, upon effectiveness, use it for one or more “at-the-market” offerings.
4.8 StockholdersRights Plan; Investment Company. No claim will be made or enforced by the Company or, to the Knowledge of the Company, any other Person that Purchaser is an “Acquiring Person” under any stockholders rights plan or similar plan or arrangement in effect or hereafter adopted by the Company, or that Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Notes under the Transaction Documents or under any other agreement between the Company and Purchaser. The Company shall conduct its business in a manner so that it will not become subject to the Investment Company Act of 1940, as amended.
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4.9 Non-PublicInformation. The Company covenants and agrees that neither it nor any other Person acting on its behalf will provide Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. On and after the date hereof, other than as described herein, neither Purchaser nor any Affiliate of Purchaser shall have any duty of trust or confidence that is owed directly, indirectly, or derivatively, to the Company or the stockholders of the Company, or to any other Person who is the source of material non-public information regarding the Company. The Company understands and confirms that Purchaser shall be relying on the foregoing in effecting transactions in securities of the Company.
4.10 CertainTransactions. The Purchaser covenants and agrees that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any Short Sales of the Common Stock or hedging transaction, which establishes a net short position with respect to the Company’s Common Stock) during the period commencing with the execution of this Agreement and ending on the date of the full conversion of the Notes.
4.11 RegistrationStatement. The Company shall use commercially reasonable efforts to file a resale registration statement on Form S-1 (the “RegistrationStatement”) with the SEC within fifteen (15) days following the Execution Date (“Filing Deadline”) registering for resale the Conversion Shares. The Company agrees, subject to SEC rules and regulations, to use commercially reasonable efforts to register such number of Conversion Shares equal to 100% of the maximum number of Conversion Shares issuable based upon the Floor Price (as defined in the Note) assuming the Maximum Investment, including any such shares issuable with respect to accrued but unpaid interest. The Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its best efforts to keep such Registration Statement continuously effective under the Securities Act. For the purposes hereof, “EffectivenessDate” means, with respect to the Registration Statement required to be filed hereunder, sixty (60) calendar days following the Filing Deadline; provided, however, that in the event the Company is notified by the SEC that the above Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the second (2nd) Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading Day.
4.12 Maintenanceof Registration Statement. For so long as any of the Notes or Conversion Shares remain outstanding, the Company shall use its best efforts to maintain the effectiveness of the Registration Statement for the sale thereunder of the Conversion Shares. The Company shall promptly amend the Registration Statement on such other form as may be necessary to maintain the effectiveness of the Registration Statement for this purpose. If at any time following the date hereof the Registration Statement is not effective or is not otherwise available for the issuance of the Notes or Conversion Shares or any prospectus contained therein is not available for use, the Company shall immediately notify the Purchaser in writing that the Registration Statement is not then effective or a prospectus contained therein is not available for use and thereafter shall promptly notify the Purchaser when the Registration Statement is effective again and available for the issuance of the Notes or Conversion Shares or such prospectus is again available for use.
4.13 PrimaryMarket Compliance. Notwithstanding anything in this Agreement or any other Transaction Document to the contrary, the parties shall use commercially reasonable efforts to comply with the rules of the Principal Market, including the listing requirements, and as long as the Common Stock remains listed on the Principal Market the parties shall not enforce any provision of any Transaction Document which does not comply with the rules of the Principal Market.
4.14 Reservationof Shares. The Company shall reserve 47,142,858 shares of its authorized and unissued Common Stock, solely for the purpose of issuing the Conversion Shares.
4.15 Listing. The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Conversion Shares upon each trading market and national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or designated for quotation (as the case may be) (so that all such Conversion Shares may be traded on the foregoing, subject to official notice of issuance) and shall maintain such listing or designation for quotation (as the case may be) of all Conversion Shares from time to time issuable under the terms of the Transaction Documents on such national securities exchange or automated quotation system. The Company shall maintain the Common Stock’s listing or designation for quotation (as the case may be) on the Principal Market, the New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market (each, an “EligibleMarket”). The Company shall not take any action which could be reasonably expected to result in the delisting or suspension of the Common Stock on the Principal Market or any Eligible Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4.15.
4.16 IntentionallyOmitted.
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4.17 Conductof Business. The business of the Company shall not be conducted in violation of any law, ordinance or regulation of any governmental entity, except where such violations would not result, either individually or in the aggregate, in a Material Adverse Effect.
4.18 PassiveForeign Investment Company. The Company shall conduct its business in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign investment company within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended.
4.19 Noticeof Disqualification Events. The Company will notify the Purchaser in writing, prior to any Tranche Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person not otherwise disclosed herein.
4.20 Indemnificationof Purchaser. Subject to the provisions of this Section 4.20, the Company will indemnify and hold the Purchaser and its officers, managers, members, partners, employees, agents, Affiliates and assigns (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, managers, stockholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against, or any subpoena directed to, the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of the Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of the Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings the Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by the Purchaser Party which constitutes fraud, gross negligence or willful misconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, the Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel retained to represent such Purchaser Party, a material conflict on any material issue between the position of the Company and the position of the Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (x) for any settlement by the Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by the Purchaser Party in this Agreement or in the other Transaction Documents or such Purchaser Party’s fraud, gross negligence or willful misconduct. The indemnification required by this Section 4.20 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnification contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to applicable law.
4.21 Useof Proceeds. The Company agrees that it shall only use the Maximum Investment paid by the Purchaser to the Company for working capital and operations.
ARTICLE V
TERMINATION
5.1 Termination.
(a) The Purchaser may elect to terminate this Agreement upon the occurrence of any of the following:
(i) if at any time the Company has filed for and/or is subject to any bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors instituted by or against the Company or any Subsidiary of the Company;
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(ii) the Company is in breach or default of any Material Agreement, which breach or default could reasonably be expected to have a Material Adverse Effect; or
(iii) the Company is in breach or default of this Agreement, any Transaction Document, or any agreement with any Purchaser or any Affiliate of the Purchaser, which breach or default could reasonably be expected to have a Material Adverse Effect.
(b) The Company may elect to terminate this Agreement in the event that the Purchaser is in breach or default of this Agreement, any Transaction Document, or any agreement with the Company or any Affiliate of the Company, which breach or default could reasonably be expected to have a Material Adverse Effect.
ARTICLE VI
MISCELLANEOUS
6.1 Rescissionand Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of the other Transaction Documents, whenever the Purchaser exercises a right, election, demand or option under a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then the Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission of a conversion of any Note, the Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion or exercise notice concurrently with the return to the Purchaser of the aggregate exercise price paid to the Company for such shares.
6.2 Feesand Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its Advisors, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees, DTC fees, stamp taxes and other similar taxes and duties levied in connection with the delivery of any Conversion Shares to the Purchaser in addition to paying the cost of any counsel or other expenses incurred in rendering Rule 144 opinions of counsel for the benefit of the Purchaser upon request. The Company has agreed to pay up to $50,000 to the Purchaser for due diligence expenses related to the transactions contemplated in this Agreement, which shall be deducted by the Purchaser from the Initial Tranche Purchase Price.
6.3 EntireAgreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
6.4 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) delivered by reputable air courier service with charges prepaid, or (iii) transmitted by email, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by email, at the address or number designated below (if delivered on a Trading Day during normal business hours where such notice is to be received), or the first Trading Day following such delivery (if delivered other than on a Trading Day during normal business hours where such notice is to be received) or (b) on the second Trading Day following the date of express courier service, fully prepaid, addressed to such address, or upon actual receipt of such delivery, whichever shall first occur. The addresses for such communications shall be: (i) if to the Company, to: TurnOnGreen, Inc., 1421 McCarthy Blvd, Milpitas, California 95035, Attn. Amos Kohn, email: akohn@turnongreen.com, and (ii) if to the Purchaser, to: the address and email address indicated on the signature pages hereto.
6.5 Amendments;Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser, or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
6.6 Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
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6.7 Successorsand Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser. The Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Conversion Shares, provided that such transferee agrees in writing to be bound, with respect to the transferred Conversion Shares, by the provisions of the Transaction Documents that apply to the “Purchasers.”
6.8 NoThird-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth herein.
6.9 GoverningLaw. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an 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 Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
6.10 Survival. The representations and warranties contained herein shall not survive the applicable Tranche Closing Date. All covenants and agreements of the parties contained herein shall survive each Tranche Closing indefinitely or for the period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.
6.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
6.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
6.13 FurtherAssurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
6.14 Replacementof Notes. If any certificate or instrument evidencing any of the Notes is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon surrender and cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft, destruction, or mutilation, and of the ownership of such security. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity and bonds) associated with the issuance of such replacement Note.
| 29 |
| --- |
6.15 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate.
6.16 PaymentSet Aside. To the extent that the Company makes a payment or payments to the Purchaser pursuant to any Transaction Document or the Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.
6.17 LiquidatedDamages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts due thereunder have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.
6.18 Saturdays,Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
6.19 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
6.20 WAIVEROF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACHKNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLYWAIVES FOREVER TRIAL BY JURY.
6.21 EquitableAdjustment. Trading volume amounts, price/volume amounts and similar figures in the Transaction Documents shall be equitably adjusted (but without duplication) to offset the effect of stock splits, similar events and as otherwise described in this Agreement, if such events shall occur between the date of this Agreement and a Tranche Closing.
[signature pages follow]
| 30 |
| --- |
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be duly executed by its authorized signatory as of the date first indicated above.
| TURNONGREEN**, INC.** | ||
|---|---|---|
| By: | ||
| Name: | Amos Kohn | |
| Title: | Chief Executive Officer |
PURCHASER SIGNATURE PAGE TO TURNONGREEN, INC.
SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by its authorized signatory of the date first indicated above.
| Name of Purchaser: | SJC Lending LLC |
|---|---|
| Signature of Authorized Signatory of Purchaser: | __________________ |
| Name of Authorized Signatory: | Steven J. Caspi |
| Title of Authorized Signatory: | Sole Member |
| Address for Notice to Purchaser: | 120 Bloomindale Road, Suite 105, White Plains, New York 10605 |
| Maximum Investment: | $1,500,000 |
EXHIBIT A
NOTE
[See copy attached]
Exhibit 10.2
INTELLECTUAL PROPERTY SECURITY AGREEMENT
This Intellectual Property Security Agreement (“Agreement”) is executed on October 29, 2025 by and among TurnOnGreen, Inc., a Nevada corporation (“TOGI”), Digital Power Corporation, a Delaware corporation (“Digital Power”) and TOG Technologies, Inc., a Nevada corporation (“TOGT”, and together with TOGI and Digital Power, with each of their successors and assigns, the “Grantors”), in favor of SJC Lending LLC (“Investor”).
RECITALS
A. TOGI has issued and will issue after the date hereof secured convertible promissory notes (each a “Note” and collectively, the “Notes”) to Investor pursuant to that certain Securities Purchase Agreement, by and between TOGI and Investor, dated as of the date hereof (as amended and restated from time to time) (the “Purchase Agreement”). Capitalized terms used but not otherwise defined herein have the meanings given to them in the Purchase Agreement.
B. Investor is willing to make the loans to TOGI pursuant to the Notes, but only upon the condition, among others, that the Grantors grant to Investor (i) a security interest in certain Copyrights, Trademarks, Patents, and Mask Works (as each term is defined below) and (ii) a security interest in certain collateral of the Grantors, as set forth in that certain Security Agreement, by and amongst the Grantors and Investor, entered into on the date hereof (the “Security Agreement”), in each case, to secure the obligations of TOGI under the Notes.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, as collateral security for the prompt and complete payment when due of TOGI’s obligations under the Purchase Agreement and the other Transaction Documents, the Grantors hereby represent, warrant, covenant and agree as follows:
AGREEMENT
1. Grant of Security Interest. To secure TOGI’s obligations under the Purchase Agreement and the other Transaction Documents, Grantors grant and pledge to Investor a security interest in all of Grantors’ right, title and interest in, to and under their intellectual property (all of which shall collectively be called the “Intellectual Property Collateral”), including, without limitation, the following:
(a) Any and all copyright rights, copyright applications, copyright registrations and like protections in each work or authorship and derivative work thereof, whether published or unpublished and whether or not the same also constitutes a trade secret, now or hereafter existing, created, acquired or held, including without limitation those set forth on Exhibit A attached hereto (collectively, the “Copyrights”);
(b) Any and all trade secrets, and any and all intellectual property rights in computer software and computer software products now or hereafter existing, created, acquired or held;
(c) Any and all design rights that may be available to Grantors now or hereafter existing, created, acquired or held;
(d) All patents, patent applications and like protections including, without limitation, improvements, divisions, continuations, renewals, reissues, extensions and continuations-in-part of the same, including without limitation the patents and patent applications set forth on Exhibit B attached hereto (collectively, the “Patents”);
(e) Any trademark and servicemark rights, whether registered or not, applications to register and registrations of the same and like protections, and the entire goodwill of the business of each Grantor connected with and symbolized by such trademarks, including without limitation those set forth on Exhibit C attached hereto (collectively, the “Trademarks”), provided that the term “Intellectual Property Collateral” shall not include intent-to-use trademark applications until such time as a statement of use is filed with the U.S. Patent and Trademark Office with respect to such intent-to-use trademark application;
(f) All mask works or similar rights available for the protection of semiconductor chips, now owned or hereafter acquired, including, without limitation those set forth on Exhibit D attached hereto (collectively, the “Mask Works”);
(g) Any and all claims for damages by way of past, present and future infringements of any of the rights included above, with the right, but not the obligation, to sue for and collect such damages for said use or infringement of the intellectual property rights identified above;
(h) All licenses or other rights to use any of the Copyrights, Patents, Trademarks, or Mask Works and all license fees and royalties arising from such use to the extent permitted by such license or rights;
(i) All amendments, extensions, renewals and extensions of any of the Copyrights,
Trademarks, Patents, or Mask Works; and
(j) All proceeds and products of the foregoing, including without limitation all payments under insurance or any indemnity or warranty payable in respect of any of the foregoing.
2. Recordation; Notice. Grantors authorize the Commissioner for Patents, the Commissioner for Trademarks and the Register of Copyrights (collectively, the "Registers") and any other government officials to record and register this Agreement upon request by Investor, provided that Investor shall not record this Agreement against any intent-to-use trademark applications. The Grantors shall promptly notify Investor of any material additions to the Intellectual Property Collateral with respect to which recordation with one or more of the Registers is appropriate.
3. Authorization. Grantors hereby authorize Investor to (a) modify this Agreement unilaterally by amending the exhibits to this Agreement to include any Intellectual Property Collateral which Grantors obtain subsequent to the date of this Agreement, and (b) file a duplicate original of this Agreement containing amended exhibits reflecting such new Intellectual Property Collateral.
4. Termination of Security Interest. Upon the payment in full of all Obligations (as defined in the Security Agreement) and the cancellation or termination of any commitment to extend credit or purchase Notes under the Purchase Agreement, the security interest granted herein shall terminate and all rights to the Intellectual Property Collateral shall revert to Grantors. Upon such termination, Investor hereby authorizes Grantors to file any statements or other filings necessary to effect such termination and Investor will execute and deliver to Grantors any additional documents or instruments as Grantors shall reasonably request to evidence such termination.
5. Loan Documents. This Agreement has been entered into pursuant to and in conjunction with the Purchase Agreement and the other Transaction Documents, which are hereby incorporated by reference. The provisions of the Purchase Agreement and the other Transaction Documents shall supersede and control over any conflicting or inconsistent provision herein. The rights and remedies of Investor with respect to the Intellectual Property Collateral are as provided by the Purchase Agreement, Security Agreement and other Transaction Documents, and nothing in this Agreement shall be deemed to limit such rights and remedies.
6. Execution in Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic (i.e., “pdf” or “tif” format) shall be effective as delivery of a manually executed counterpart of this Agreement.
7. Successors and Assigns. This Agreement will be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns.
8. Governing Law. This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the laws of the United States and the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).
9. Confidentiality. Except as required by law or to perfect or enforce its rights hereunder, Investor shall keep confidential non-public technical information contained in the Intellectual Property Collateral (including source code and trade secret descriptions) and shall not publicly disclose detailed lists, descriptions or the substance of trade secrets or source code collateral except as required for filings with the Registers or as reasonably required to exercise or enforce Investor’s rights under this Agreement. Investor may disclose such information to its legal, financial and professional advisors who have a need to know such information and are bound by customary confidentiality obligations. Each party agrees to maintain the confidentiality of the other party’s non-public information obtained in connection with this Agreement and to use such information solely for purposes of administering or enforcing this Agreement. Either party may disclose such information if required by law, regulation, or court order, after providing prompt written notice (to the extent legally permitted) to enable the other party to seek protective relief.
10. Grantor Representations and Warranties. Each Grantor represents and warrants to Investor as of the Execution Date that: (a) it is, to its knowledge and in all material respects, the sole legal and beneficial owner of the Intellectual Property Collateral reflected on the Exhibits (subject only to Permitted Licenses) free and clear of any Liens other than Permitted Liens, (b) it has the right and authority to grant the security interest described in this Agreement, (c) to its knowledge, no action, claim or proceeding is pending or threatened in writing that, if adversely determined, would materially impair the value or enforceability of the Intellectual Property Collateral, (d) the Exhibits and Schedules delivered to Investor are true and complete in all material respects and (e) the execution and delivery of this Agreement do not and will not result in any material breach or default under any material agreement to which such Grantor is a party. The foregoing representations and warranties shall survive the execution of this Agreement for a period of twelve (12) months, except that representations of ownership (clause (a)) and representations made with respect to fraud shall survive until termination of the security interest.
11. Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) delivered by reputable air courier service with charges prepaid, or (iii) transmitted by email, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by email, at the address or number designated below (if delivered on a Trading Day during normal business hours where such notice is to be received), or the first Trading Day following such delivery (if delivered other than on a Trading Day during normal business hours where such notice is to be received) or (b) on the second Trading Day following the date of express courier service, fully prepaid, addressed to such address, or upon actual receipt of such delivery, whichever shall first occur. The addresses for such communications shall be the addresses and email addresses indicated on the signature pages hereto.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties have caused this Intellectual Property Security Agreement to be duly executed by its officers thereunto duly authorized as of the first date written above.
| INVESTOR: | |||
|---|---|---|---|
| Address: | SJC LENDING LLC | ||
| 120 Bloomingdale Road, Suite 105 | |||
| White Plains, NY 10605 | By: | ||
| Attention: Steven J. Caspi | Name: | Steven J. Caspi | |
| Email: steve@caspidevelopment.com | Title: | Sole Member | |
| GRANTORS: | |||
| --- | --- | --- | --- |
| Address: | TURNONGREEN, INC. | ||
| 1421 McCarthy Blvd.<br><br> <br>Milpitas, CA 95035 | |||
| Attention: Amos Kohn | By: | ||
| Email: akohn@turnongreen.com | Name: | Amos Kohn | |
| Title: | Chief Executive Officer | ||
| Address: | DIGITAL POWER CORPORATION | ||
| --- | --- | --- | --- |
| 1421 McCarthy Blvd. | |||
| Milpitas, CA 95035 | By: | ||
| Attention: Amos Kohn | Name: | Amos Kohn | |
| Email: akohn@turnongreen.com | Title: | Chief Executive Officer | |
| Address: | TOG TECHNOLOGIES, INC. | ||
| --- | --- | --- | --- |
| 1421 McCarthy Blvd. | |||
| Milpitas, CA 95035 | By: | ||
| Attention: Amos Kohn | Name: | Amos Kohn | |
| Email: akohn@turnongreen.com | Title: | Chief Executive Officer |
[Signature Page to the Intellectual PropertySecurity Agreement]
EXHIBIT A
Copyrights
| Title / Work<br><br> <br>Name | Registration No. | Registration<br><br> <br>Date | Jurisdiction /<br><br> <br>Office | Owner /<br><br> <br>Author | Comments (if any) |
|---|---|---|---|---|---|
| Chassis Power<br><br> <br>Supply | CPCI AC-6U-400<br><br> <br>CPCI AC-6U-500<br><br> <br>CPCI AC-6U-650 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Chassis Power<br><br> <br>Supply | CPCI DC-3U-200/24<br><br> <br>CPCI DC-3U-300/24<br><br> <br>CPCI DC-3U-300 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Chassis Power<br><br> <br>Supply | CPCI DC-6U-350/24<br><br> <br>CPCI DC-6U-400 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Open<br><br> <br>Frame/Enclosed<br><br> <br>Power Supply | HD240O-124<br><br> <br>HDM240E-112<br><br> <br>HDM240E-124<br><br> <br>HDM240E-148<br><br> <br>HDM240O-112<br><br> <br>HDM240O-124<br><br> <br>HDM240O-148<br><br> <br>HDM240U-112<br><br> <br>HDM240U-124<br><br> <br>HDM240U-148 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Open<br><br> <br>Frame/Enclosed<br><br> <br>Power Supply | DM500E-112<br><br> <br>HDM500E-124<br><br> <br>HDM500E-148<br><br> <br>HDM500O-112<br><br> <br>HDM500O-124<br><br> <br>HDM500O-148<br><br> <br>HDM500U-112<br><br> <br>HDM500U-124<br><br> <br>HDM500U-148 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Defense Grade<br><br> <br>Power Supply | DN500M-24T | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Defense Grade<br><br> <br>Power Supply | PS-9525 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Defense Grade<br><br> <br>Power Supply | DPSS-DCH-250 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Defense Grade<br><br> <br>Power Supply | DPSS-DCH-350 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Defense Grade<br><br> <br>Power<br><br> <br>Distribution<br><br> <br>Unit (PDU) | SYS1440DC-ALD | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Defense Grade<br><br> <br>Power<br><br> <br>Controller | DPLVD-1014 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Telecom Power<br><br> <br>Supply | PS-4001 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| --- | --- | --- | --- | ||
| Telecom Power<br><br> <br>Supply | PS-4002 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Telecom Power<br><br> <br>Supply | PS-4103 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Telecom Power<br><br> <br>Supply | SYS1260W-QUA | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Medical Power<br><br> <br>Supply | UPCS300-126 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Medical Power<br><br> <br>Supply | SYS-MICRO-US | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Medical Power<br><br> <br>Supply | USCS250-489 | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| Defense Grade<br><br> <br>Power Supply | SYS600W-2-LHM | California | Digital<br><br> <br>Power<br><br> <br>Corporation | ||
| L2 EV Charger | CEVAC-7KW-J17-S18-NEM6-50 | California | Turnongreen,<br><br> <br>Inc. | ||
| L2 EV Charger | CEVAC-7KW-J17-S18-NEM14-50 | California | Turnongreen,<br><br> <br>Inc. | ||
| L2 EV Charger | CEVAC-7KW-J17-S24-NEM6-50 | California | Turnongreen,<br><br> <br>Inc. | ||
| L2 EV Charger | CEVAC-7KW-J17-S24-NEM14-50 | California | Turnongreen,<br><br> <br>Inc. |
EXHIBIT B
Patents
| Patent /<br><br> <br>Application No. | Title of Invention | Filing Date | Jurisdiction /<br><br> <br>Office | Status (issued /<br><br> <br>pending) | Owner /<br><br> <br>Assignee |
|---|
EXHIBIT C
Trademarks
| Mark / Logo<br><br> <br>Description | Application /<br><br> <br>Registration<br><br> <br>No. | Filing Date | Jurisdiction /<br><br> <br>Office | Goods /<br><br> <br>Services<br><br> <br>(Class Nos.) | Owner / Assignee | |
|---|---|---|---|---|---|---|
| DP Digital Power | 4635036 | 11/11/2014 | USPTO | Class 009<br><br> <br>Class 040<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| DP Digital Power<br><br> <br>Flexible Power<br><br> <br>Solutions | 4635037 | 11/11/2014 | USPTO | Class 009<br><br> <br>Class 040<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| Coolisys Technologies | 6043039 | 04/28/2020 | USPTO | Class 009 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| Coolisys Technologies<br><br> <br>Corp. | 6304934 | 03/30/2021 | USPTO | Class 009 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| Coolisys Technologies<br><br> <br>Corp. | 1579106 | 01/20/2021 | WIPO | MADRID | Class 1.5<br><br> <br>Class 26.1<br><br> <br>Class 26.22<br><br> <br>Class 27.5 | Coolisys Technologies Corp.<br><br> <br>akohn@turnongreen.com |
| Coolisys Technologies<br><br> <br>Inc. | 6043041 | 04/28/2020 | USPTO | Class 009 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| TURNON GREEN | 7065887 | 05/30/2023 | USPTO | Class 009<br><br> <br>Class 037<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| TURNONGREEN | 7316677 | 02/27/2024 | USPTO | Class 009<br><br> <br>Class 037<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| TURNONGREEN | 7316675 | 02/27/2024 | USPTO | Class 009<br><br> <br>Class 037<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| TURNONGREEN | 7316676 | 02/27/2024 | USPTO | Class 009<br><br> <br>Class 037<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| TURNON GREEN | 7065886 | 05/30/2023 | USPTO | Class 009<br><br> <br>Class 037<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| --- | --- | --- | --- | --- | --- | |
| ACECOOL | 6522315 | 10/12/2021 | USPTO | Class 009 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| COOLWATTS | 7316670 | 02/27/2024 | USPTO | Class 009<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com | |
| EVCOOL | 7151464 | 08/29/2023 | USPTO | Class 009<br><br> <br>Class 042 | TURNONGREEN, INC.<br><br> <br>akohn@turnongreen.com |
EXHIBIT D
Mask Works
| Mask Work<br><br> <br>Name | Registration<br><br> <br>No. | Registration<br><br> <br>Date | Jurisdiction | Owner /<br><br> <br>Assignee | Notes |
|---|
Exhibit 10.3
SECURITY AGREEMENT
This Security Agreement (this “Agreement”) is entered into and effective as of October 29, 2025, made by and among TurnOnGreen, Inc., a Nevada corporation (the “Company”), Digital Power Corporation, a Delaware corporation (“Digital Power”), TOG Technologies, Inc., a Nevada corporation (“TOGT”, and together with Digital Power, collectively, the “Company’s Subsidiaries”), as grantors, pledgors, assignors and debtors, in favor of SJC Lending LLC, a Delaware limited liability company (“SJC” or the “Secured Party”), as pledgee, assignee and secured party.
RECITALS
WHEREAS, the Company and the Secured Party have, in connection with the execution and delivery of this Agreement, entered into that certain Securities Purchase Agreement, dated of even date herewith (the “Purchase Agreement”). Capitalized terms used but not defined herein have the meanings set forth in the Purchase Agreement;
WHEREAS, pursuant to the Purchase Agreement, the Company has executed a certain Secured Convertible Promissory Note, dated of even date herewith, made by the Company in favor of SJC (the “Initial Promissory Note”), and following the date hereof, will execute certain Secured Convertible Promissory Notes, to be made by the Company in favor of SJC (the “Additional Promissory Notes”, and together with the Initial Promissory Note, the “Promissory Notes”); and
WHEREAS, this Agreement is given by the Company and the Company’s Subsidiaries in favor of the Secured Party to secure the payment and performance of the Obligations (as defined below).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Company’s Subsidiaries and SJC (collectively, the “Parties”) enter into this Agreement and agree and acknowledge the following:
1. Certain Definitions. As used in this Agreement, the following terms shall have the meanings set forth in this Section 1. Terms used but not otherwise defined in this Agreement that are defined in Article 9 of the UCC (such as “account”, “chattel paper”, “commercial tort claim”, “deposit account”, “document”, “equipment”, “fixtures”, “general intangibles”, “goods”, “instruments”, “inventory”, “investment property”, “letter-of-credit rights”, “proceeds” and “supporting obligations”) shall have the respective meanings given such terms in Article 9 of the UCC.
(a) “Collateral” means the collateral in which the Secured Party is granted a security interest by this Agreement and which shall include the following personal property of the Company and the Company’s Subsidiaries, whether presently owned or existing or hereafter acquired or coming into existence, wherever situated, and all additions and accessions thereto and all substitutions and replacements thereof, and all proceeds, products and accounts thereof, including, without limitation, all proceeds from the sale or transfer of the Collateral and of insurance covering the same and of any tort claims in connection therewith, and all dividends, interest, cash, notes, securities, equity interest or other property at any time and from time to time acquired, receivable or otherwise distributed in respect of, or in exchange for, any or all of the capital stock and other equity interests of the Company’s Subsidiaries (the “Subsidiaries’ Securities”):
(i) All goods, including, without limitation, (A) all machinery, equipment, computers, motor vehicles, trucks, appliances, furniture, special and general tools, fixtures, test and quality control devices and other equipment of every kind and nature and wherever situated, together with all documents of title and documents representing the same, all additions and accessions thereto, replacements therefor, all parts therefor, and all substitutes for any of the foregoing and all other items used and useful in connection with each of the Company’s and the Company’s Subsidiaries’ businesses and all improvements thereto; and (B) all inventory;
(ii) All contract rights and other general intangibles, including, without limitation, all partnership interests, membership interests, stock or other securities, rights under any of the Organizational Documents, agreements related to the Subsidiaries’ Securities, licenses, distribution and other agreements, computer software (whether “off-the-shelf”, licensed from any third party or developed by the Company or the Company’s Subsidiaries), computer software development rights, leases, franchises, customer lists, quality control procedures, grants and rights, goodwill, Intellectual Property and income tax refunds;
(iii) All accounts, together with all instruments, all documents of title representing any of the foregoing, all rights in any merchandising, goods, equipment, motor vehicles and trucks which any of the same may represent, and all right, title, security and guaranties with respect to each account, including any right of stoppage in transit;
(iv) All documents, letter-of-credit rights, instruments and chattel paper;
(v) All commercial tort claims;
(vi) All deposit accounts and all cash (whether or not deposited in such deposit accounts);
(vii) All investment property;
(viii) All supporting obligations;
(ix) All files, records, books of account, business papers, and computer programs; and
(x) the products and proceeds of all of the foregoing Collateral set forth in clauses (i)-(ix) above.
Without limiting the generality of the foregoing, the “Collateral” shall include any other shares of capital stock and/or other equity interests of any other direct or indirect subsidiary of the Company or the Company’s Subsidiaries obtained in the future, and, in each case, all certificates representing such shares and/or equity interests and, in each case, all rights, options, warrants, stock, other securities and/or equity interests that may hereafter be received, receivable or distributed in respect of, or exchanged for, any of the foregoing and all rights arising under or in connection with the Subsidiaries’ Securities, including, but not limited to, all dividends, interest and cash.
Notwithstanding the foregoing, nothing herein shall be deemed to constitute an assignment of any asset which, in the event of an assignment, becomes void by operation of applicable law or the assignment of which is otherwise prohibited by applicable law (in each case to the extent that such applicable law is not overridden by Sections 9-406, 9-407 and/or 9-408 of the UCC or other similar applicable law); provided, however, that to the extent permitted by applicable law, this Agreement shall create a valid security interest in such asset and, to the extent permitted by applicable law, this Agreement shall create a valid security interest in the proceeds of such asset.
(b) “Intellectual Property” means the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, multinational or foreign laws or otherwise, including, without limitation, (i) all copyrights arising under the laws of the United States, any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished, all registrations and recordings thereof, and all applications in connection therewith, including, without limitation, all registrations, recordings and applications in the United States Copyright Office, (ii) all patents of the United States, any other country or any political subdivision thereof, all reissues and extensions thereof, and all applications for patents of the United States or any other country and all divisions, continuations and continuations-in-part thereof, (iii) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade dress, service marks, logos, domain names and other source or business identifiers, and all goodwill associated therewith, now existing or hereafter adopted or acquired, all registrations and recordings thereof, and all applications in connection therewith, whether in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State thereof or any other country or any political subdivision thereof, or otherwise, and all common law rights related thereto, (iv) all trade secrets arising under the laws of the United States, any other country or any political subdivision thereof, (v) all rights to obtain any reissues, renewals or extensions of the foregoing, (vi) all licenses for any of the foregoing, and (vii) all causes of action for infringement of the foregoing.
(c) “IP Security Agreement” means the Intellectual Property Security Agreement, dated of even date herewith, by and among the Company, the Company’s Subsidiaries and the Secured Party.
(d) “Necessary Endorsement” means undated stock powers endorsed in blank or other proper instruments of assignment duly executed and such other instruments or documents as the Secured Party may reasonably request.
(e) “Obligations” means all of the liabilities and obligations (primary, secondary, direct, contingent, sole, joint or several) due or to become due, or that are now or may be hereafter contracted or acquired, or owing to, of the Company or the Company’s Subsidiaries to the Secured Party, including, without limitation, all obligations under this Agreement, the Transaction Documents, and any other instruments, agreements or other documents executed and/or delivered in connection herewith or therewith, in each case, whether now or hereafter existing, voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later increased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from the Secured Party as a preference, fraudulent transfer or otherwise as such obligations may be amended, supplemented, converted, extended or modified from time to time.
(f) “Organizational Documents” means with respect to the Company and the Company’s Subsidiaries, the documents by which the Company or the Company’s Subsidiaries was organized (such as a certificate of incorporation, certificate of limited partnership or articles of organization, and including, without limitation, any certificates of designation for preferred stock or other forms of preferred equity), as applicable, and which relate to the internal governance of the Company or the Company’s Subsidiaries (such as bylaws, a partnership agreement or an operating, limited liability or members agreement), as applicable.
(g) “Pledge Agreement” means the Pledge Agreement, dated of even date herewith, by and between the Company and the Secured Party.
(h) “Transaction Documents” means the Purchase Agreement, Promissory Notes, the IP Security Agreement, the Pledge Agreement and any other agreements that are in effect as of the date hereof between the Company, the Company’s Subsidiaries and SJC.
(i) “UCC” means the Uniform Commercial Code of the State of Nevada and or any other applicable law of any state or states which has jurisdiction with respect to all, or any portion of, the Collateral or this Agreement, from time to time. It is the intent of the parties that defined terms in the UCC should be construed in their broadest sense so that the term “Collateral” will be construed in its broadest sense. Accordingly, if there are, from time to time, changes to defined terms in the UCC that broaden the definitions, they are incorporated herein and if existing definitions in the UCC are broader than the amended definitions, the existing ones shall be controlling.
2. Grant of Security Interest in Collateral. As an inducement for the Secured Party to enter into the Purchase Agreement and the investment as evidenced by the Promissory Notes, and to secure the complete and timely payment, performance and discharge in full, as the case may be, of all of the Obligations, the Company and the Company’s Subsidiaries hereby unconditionally and irrevocably pledges, grants and hypothecates to the Secured Party, a security interest in and to, a lien upon and a right of set-off against all of their respective right, title and interest of whatsoever kind and nature in and to, the Collateral (a “Security Interest” and, collectively, the “Security Interests”).
3. Delivery of Certain Collateral. As soon as practicable after execution of this Agreement, the Company and the Company’s Subsidiaries shall deliver or cause to be delivered to the Secured Party (a) any and all certificates and other instruments representing or evidencing the Subsidiaries’ Securities, and (b) any and all certificates and other instruments or documents representing any of the other Collateral, in each case, together with all Necessary Endorsements. The Company and the Company’s Subsidiaries are, contemporaneously with the execution hereof, delivering to Secured Party, or have previously delivered to Secured Party, a true and correct copy of each Organizational Document governing any of the Subsidiaries’ Securities.
4. Effect of Pledge on Certain Rights. If any of the Collateral subject to this Agreement consists of nonvoting equity or ownership interests (regardless of class, designation, preference or rights) that may be converted into voting equity or ownership interests upon the occurrence of certain events (including, without limitation, upon the transfer of all or any of the other stock or assets of the issuer), it is agreed that the pledge of such equity or ownership interests pursuant to this Agreement or the enforcement of the Secured Party’s rights hereunder shall not be deemed to be the type of event which would trigger such conversion rights notwithstanding any provisions in the Organizational Documents or agreements to which the Company or any of the Company’s Subsidiaries are subject or to which the Company or any of the Company’s Subsidiaries are a party.
5. Defaults. The following events shall be “Events of Default” to the extent not waived pursuant to the Purchase Agreement:
(a) The occurrence of an event of default under any of the Promissory Notes;
(b) Any representation or warranty of the Company in the Transaction Documents shall prove to have been incorrect in any material respect when made;
(c) The failure by the Company or any of the Company’s Subsidiaries to observe or perform any of its obligations hereunder for five (5) days after delivery to the Company or the Company’s Subsidiaries of notice of such failure by or on behalf of the Secured Party unless such default is capable of cure but cannot be cured within such time frame and the Company or the Company’s Subsidiaries is using best efforts to cure same in a timely fashion; or
(d) If any provision of this Agreement shall at any time for any reason be declared to be null and void, or the validity or enforceability thereof shall be contested by the Company or any of the Company’s Subsidiaries, or a proceeding shall be commenced by the Company or any of the Company’s Subsidiaries, or by any governmental authority having jurisdiction over the Company or any of the Company’s Subsidiaries, seeking to establish the invalidity or unenforceability thereof, or the Company or any of the Company’s Subsidiaries shall deny that the Company or any of the Company’s Subsidiaries has any liability or obligation purported to be created under this Agreement.
6. Duty To Hold In Trust.
(a) Upon the occurrence of any Event of Default and at any time thereafter, the Company and the Company’s Subsidiaries shall, upon receipt of any revenue, income, dividend, interest or other sums subject to the Security Interests, whether payable pursuant to the Promissory Notes or otherwise, or of any check, draft, note, trade acceptance or other instrument evidencing an obligation to pay any such sum, hold the same in trust for the Secured Party and shall forthwith endorse and transfer any such sums or instruments, or both, to the Secured Party.
(b) If the Company or any of the Company’s Subsidiaries shall become entitled to receive or shall receive any securities or other property (including, without limitation, shares of the Subsidiaries’ Securities or instruments representing the Subsidiaries’ Securities acquired after the date hereof, or any options, warrants, rights or other similar property or certificates representing a dividend, or any distribution in connection with any recapitalization, reclassification or increase or reduction of capital, or issued in connection with any reorganization of the Company, the Company’s Subsidiaries or any of their direct or indirect subsidiaries) in respect of the Subsidiaries’ Securities (whether as an addition to, in substitution of, or in exchange for, the Subsidiaries’ Securities or otherwise), the Company and the Company’s Subsidiaries agree to (i) accept the same as the agent of the Secured Party; (ii) hold the same in trust on behalf of and for the benefit of the Secured Party; and (iii) to deliver any and all certificates or instruments evidencing the same to Secured Party on or before the close of business on the fifth business day following the receipt thereof by the Company and the Company’s Subsidiaries, in the exact form received together with the Necessary Endorsements, to be held by the Secured Party subject to the terms of this Agreement as Collateral.
7. Rights and Remedies Upon Default.
(a) Upon the occurrence of any Event of Default and at any time thereafter, the Secured Party, shall have the right to exercise all of the remedies conferred hereunder and under the Promissory Notes, and the Secured Party shall have all the rights and remedies of a secured party under the UCC, in each case subject to applicable law. Without limitation other than as stated in the previous sentence, the Secured Party shall have the following rights and powers:
(i) The Secured Party shall have the right to take possession of the Collateral and, for that purpose, enter, with the aid and assistance of any person, any premises where the Collateral, or any part thereof, is or may be placed and remove the same, and the Company and the Company’s Subsidiaries shall assemble the Collateral and make it available to the Secured Party at places which the Secured Party shall reasonably select, whether at the Company’s or the Company’s Subsidiaries’ premises or elsewhere, and make available to the Secured Party, without rent, all of the Company’s and the Company’s Subsidiaries’ respective premises and facilities for the purpose of the Secured Party taking possession of, removing or putting the Collateral in saleable or disposable form.
(ii) Upon notice to the Company and the Company’s Subsidiaries by the Secured Party, all rights of the Company and the Company’s Subsidiaries to exercise the voting and other consensual rights which they would otherwise be entitled to exercise and all rights of the Company and the Company’s Subsidiaries to receive the dividends and interest which they would otherwise be authorized to receive and retain, shall cease. Upon such notice, the Secured Party shall have the right to receive any interest, cash dividends or other payments on the Collateral and, at the option of Secured Party, to exercise in such Secured Party’s discretion all voting rights pertaining thereto. Without limiting the generality of the foregoing, the Secured Party shall have the right (but not the obligation) to exercise all rights with respect to the Collateral as it were the sole and absolute owner thereof, including, without limitation, to vote and/or to exchange, at its sole discretion, any or all of the Collateral in connection with a merger, reorganization, consolidation, recapitalization or other readjustment concerning or involving the Collateral or the Company, the Company’s Subsidiaries or any of their direct or indirect subsidiaries.
(iii) The Secured Party shall have the right to operate the business of the Company and the Company’s Subsidiaries using the Collateral and shall have the right to assign, sell, lease or otherwise dispose of and deliver all or any part of the Collateral, at public or private sale or otherwise, either with or without special conditions or stipulations, for cash or on credit or for future delivery, in such parcel or parcels and at such time or times and at such place or places, and upon such terms and conditions as the Secured Party may deem commercially reasonable, all without (except as shall be required by applicable statute and cannot be waived) advertisement or demand upon or notice to Company or the Company’s Subsidiaries or right of redemption of the Company of the Company’s Subsidiaries, which are hereby expressly waived. Upon each such sale, lease, assignment or other transfer of Collateral, the Secured Party, may, unless prohibited by applicable law which cannot be waived, purchase all or any part of the Collateral being sold, free from and discharged of all trusts, claims, right of redemption and equities of the Company and the Company’s Subsidiaries, which are hereby waived and released.
(iv) The Secured Party shall have the right (but not the obligation) to notify any account debtors and any obligors under instruments or accounts to make payments directly to the Secured Party, on behalf of the Secured Party, and to enforce the Company’s and the Company’s Subsidiaries’ rights against such account debtors and obligors.
(v) The Secured Party may (but are not obligated to) direct any financial intermediary or any other person or entity holding any investment property to transfer the same to the Secured Party or its designee.
(vi) The Secured Party may (but is not obligated to) transfer any or all Intellectual Property registered in the name of the Company and the Company’s Subsidiaries at the United States Patent and Trademark Office and/or Copyright Office into the name of the Secured Party or any designee or any purchaser of any Collateral.
(b) The Secured Party shall comply with any applicable law in connection with a disposition of Collateral and such compliance will not be considered adversely to affect the commercial reasonableness of any sale of the Collateral. The Secured Party may sell the Collateral without giving any warranties and may specifically disclaim such warranties. If the Secured Party sells any of the Collateral on credit, the Company and the Company’s Subsidiaries will only be credited with payments actually made by the purchaser. In addition, the Company and the Company’s Subsidiaries waive any and all rights that they may have to a judicial hearing in advance of the enforcement of any of the Secured Party’s rights and remedies hereunder, including, without limitation, its right following an Event of Default to take immediate possession of the Collateral and to exercise its rights and remedies with respect thereto.
(c) For the purpose of enabling the Secured Party to further exercise rights and remedies under this Agreement or applicable law, the Company and the Company’s Subsidiaries hereby grant to the Secured Party, for the benefit of the Secured Party, an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to the Company or the Company’s Subsidiaries) to use, license or sublicense following an Event of Default, any Intellectual Property now owned or hereafter acquired by the Company or the Company’s Subsidiaries, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof.
8. Costs and Expenses. The Company and the Company’s Subsidiaries agree to pay all reasonable out-of-pocket fees, costs and expenses incurred in connection with any filing required hereunder, including without limitation, any financing statements pursuant to the UCC, continuation statements, partial releases and/or termination statements related thereto or any expenses of any searches reasonably required by the Secured Party. The Company and the Company’s Subsidiaries shall also pay all other claims and charges which in the reasonable opinion of the Secured Party is reasonably likely to prejudice, imperil or otherwise affect the Collateral or the Security Interests therein. The Company and the Company’s Subsidiaries will also, upon demand, pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with the creation, perfection, protection, satisfaction, foreclosure, collection or enforcement of the Security Interest and the preparation, administration, continuance, amendment or enforcement of this Agreement and pay to the Secured Party the amount of any and all reasonable expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, which the Secured Party may incur in connection with (i) the enforcement of this Agreement, (ii) the custody or preservation of, or the sale of, collection from, or other realization upon, any of the Collateral, or (iii) the exercise or enforcement of any of the rights of the Secured Party under the Promissory Notes.
9. Responsibility for Collateral. The Company and the Company’s Subsidiaries assume all liabilities and responsibility in connection with all Collateral, and the Obligations shall in no way be affected or diminished by reason of the loss, destruction, damage or theft of any of the Collateral or its unavailability for any reason. Without limiting the generality of the foregoing, (a) the Secured Party does not (i) have any duty (either before or after an Event of Default) to collect any amounts in respect of the Collateral or to preserve any rights relating to the Collateral, or (ii) have any obligation to clean-up or otherwise prepare the Collateral for sale, and (b) the Company and the Company’s Subsidiaries shall remain obligated and liable under each contract or agreement included in the Collateral to be observed or performed by the Company and the Company’s Subsidiaries thereunder, as applicable. The Secured Party shall not have any obligation or liability under any such contract or agreement by reason of or arising out of this Agreement or the receipt by the Secured Party of any payment relating to any of the Collateral, nor shall the Secured Party be obligated in any manner to perform any of the obligations of the Company or the Company’s Subsidiaries under or pursuant to any such contract or agreement, to make inquiry as to the nature or sufficiency of any payment received by the Secured Party in respect of the Collateral or as to the sufficiency of any performance by any party under any such contract or agreement, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts which the Secured Party may be entitled at any time or times.
10. Security Interests Absolute. All rights of the Secured Party and all obligations of the Company and the Company’s Subsidiaries hereunder, shall be absolute and unconditional, irrespective of: (a) any lack of validity or enforceability of this Agreement, the Promissory Notes or any agreement entered into in connection with the foregoing, or any portion hereof or thereof; (b) any change in the time, manner or place of payment or performance of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Promissory Notes or any other agreement entered into in connection with the foregoing; (c) any exchange, release or non-perfection of any of the Collateral, or any release or amendment or waiver of or consent to departure from any other collateral for, or any guarantee, or any other security, for all or any of the Obligations; (d) any action by the Secured Party to obtain, adjust, settle and cancel in its sole discretion any insurance claims or matters made or arising in connection with the Collateral; or (e) any other circumstance which might otherwise constitute any legal or equitable defense available to the Company or the Company’s Subsidiaries, or a discharge of all or any part of the Security Interests granted hereby. Until the Obligations shall have been paid and performed in full, the rights of the Secured Party shall continue even if the Obligations are barred for any reason, including, without limitation, the running of the statute of limitations or bankruptcy. The Company and the Company’s Subsidiaries expressly waive presentment, protest, notice of protest, demand, notice of nonpayment and demand for performance. In the event that at any time any transfer of any Collateral or any payment received by the Secured Party hereunder shall be deemed by final order of a court of competent jurisdiction to have been a voidable preference or fraudulent conveyance under the bankruptcy or insolvency laws of the United States, or shall be deemed to be otherwise due to any party other than the Secured Party, then, in any such event, the Company’s and the Company’s Subsidiaries obligations hereunder shall survive cancellation of this Agreement, and shall not be discharged or satisfied by any prior payment thereof and/or cancellation of this Agreement, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions hereof. The Company and the Company’s Subsidiaries waive all right to require the Secured Party to proceed against any other person or entity or to apply any Collateral which the Secured Party may hold at any time, or to marshal assets, or to pursue any other remedy. The Company and the Company’s Subsidiaries waive any defense arising by reason of the application of the statute of limitations to any obligation secured hereby.
11. Term of Agreement. This Agreement and the Security Interests shall terminate on the date on which all payments under the Promissory Notes have been indefeasibly paid in full or the Promissory Notes have been fully converted into shares of the Company’s common stock and all other Obligations have been paid or discharged; provided, however, that all indemnities of the Company and the Company’s Subsidiaries contained in this Agreement shall survive and remain operative and in full force and effect regardless of the termination of this Agreement.
12. Power of Attorney; Further Assurances.
(a) The Company and the Company’s Subsidiaries authorize the Secured Party, and do hereby make, constitute and appoint the Secured Party and its officers, agents, successors or assigns with full power of substitution, as the Company’s and the Company’s Subsidiaries true and lawful attorney-in-fact, with power, in the name of the Secured Party, the Company or the Company’s Subsidiaries, to, after the occurrence and during the continuance of an Event of Default, (i) endorse any note, checks, drafts, money orders or other instruments of payment (including payments payable under or in respect of any policy of insurance) in respect of the Collateral that may come into possession of the Secured Party; (ii) to sign and endorse any financing statement pursuant to the UCC or any invoice, freight or express bill, bill of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications and notices in connection with accounts, and other documents relating to the Collateral; (iii) to pay or discharge taxes, liens, security interests or other encumbrances at any time levied or placed on or threatened against the Collateral; (iv) to demand, collect, receipt for, compromise, settle and sue for monies due in respect of the Collateral; (v) to transfer any Intellectual Property or provide licenses respecting any Intellectual Property; (vi) generally, at the option of the Secured Party, and at the expense of the Company and the Company’s Subsidiaries, at any time, or from time to time, to execute and deliver any and all documents and instruments and to do all acts and things which the Secured Party deem necessary to protect, preserve and realize upon the Collateral and the Security Interests granted therein in order to effect the intent of this Agreement and the Promissory Notes all as fully and effectually as the Company and the Company’s Subsidiaries might or could do; and (vii) the Company and the Company’s Subsidiaries hereby ratify all that said attorney shall lawfully do or cause to be done by virtue hereof. This power of attorney is coupled with an interest and shall be irrevocable for the term of this Agreement and thereafter as long as any of the Obligations shall be outstanding. The designation set forth herein shall be deemed to amend and supersede any inconsistent provision in the Organizational Documents or other documents or agreements to which the Company or the Company’s Subsidiaries are subject or to which the Company or the Company’s Subsidiaries are a party. Without limiting the generality of the foregoing, after the occurrence and during the continuance of an Event of Default, the Secured Party is specifically authorized to execute and file any applications for or instruments of transfer and assignment of any patents, trademarks, copyrights or other Intellectual Property with the United States Patent and Trademark Office and the United States Copyright Office.
(b) On a continuing basis, the Company and the Company’s Subsidiaries will make, execute, acknowledge, deliver, file and record, as the case may be, with the proper filing and recording agencies in any jurisdiction, including, without limitation, the state where the Company and the Company’s Subsidiaries are incorporated or formed, as applicable, all such instruments, and take all such action as may reasonably be deemed necessary or advisable, or as reasonably requested by the Secured Party, to perfect the Security Interests granted hereunder and otherwise to carry out the intent and purposes of this Agreement, or for assuring and confirming to the Secured Party the grant or perfection of a perfected security interest in all the Collateral under the UCC.
(c) The Company and the Company’s Subsidiaries hereby irrevocably appoint the Secured Party as the Company’s and the Company’s Subsidiaries’ attorney-in-fact, with full authority in the place and instead of the Company and in the name of the Company or the Company’s Subsidiaries and in the name of the Company’s Subsidiaries, as applicable, from time to time in the Secured Party’s discretion, to take any action and to execute any instrument which the Secured Party may deem necessary or advisable to accomplish the purposes of this Agreement, pertaining to the filing, in its sole discretion, of one or more financing or continuation statements and amendments thereto, relative to any of the Collateral without the signature of the Company or the Company’s Subsidiaries where permitted by law, which financing statements may (but need not) describe the Collateral as “all assets” or “all personal property” or words of like import, and ratifies all such actions taken by the Secured Party. This power of attorney is coupled with an interest and shall be irrevocable for the term of this Agreement and thereafter as long as any of the Obligations shall be outstanding.
13. Perfection of Security Interest. From and after the date hereof, the Company and the Company’s Subsidiaries shall cooperate with the Secured Party to take any and all actions necessary to perfect the Security Interest. In furtherance of the foregoing, as soon as reasonably practicable after the date hereof, the Company and the Company’s Subsidiaries shall deliver to SJC an organizational chart setting forth the names of all of their subsidiaries and any other relevant information that may be requested by SJC in order to effectuate the Security Interest, in addition to any and all other documents or information that may be reasonably requested by SJC.
14. Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement are not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which they are entitled at law or in equity.
15. Miscellaneous. No amendment, alteration, modification of, or addition to this Agreement will be valid or binding unless expressed in writing and signed by the Parties. No Party may assign this Agreement or any of its rights or commitments hereunder without the prior written consent of the other Party. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and performed in such State, without reference to conflict of law rules that would require the application of the laws of another jurisdiction. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original copy of this Agreement and all of which, when taken together, shall be deemed to constitute one and the same agreement, and photostatic, .pdf or facsimile copies of fully-executed counterparts of this Agreement shall be given the same effect as originals.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
| TURNONGREEN, INC. | |
|---|---|
| By: | |
| Name: Amos Kohn | |
| Title: Chief Executive Officer | |
| DIGITAL POWER CORPORATION | |
| --- | --- |
| By: | |
| Name: Amos Kohn | |
| Title: Chief Executive Officer | |
| TOG TECHNOLOGIES, INC. | |
| --- | --- |
| By: | |
| Name: Amos Kohn | |
| Title: Chief Executive Officer | |
| SJC LENDING LLC | |
| --- | --- |
| By: | |
| Name: Steven J. Caspi | |
| Title: Sole Member |
[Signature Page to Security Agreement]
Exhibit 10.4
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this “Agreement”) dated as of October 29, 2025 is executed by TurnOnGreen, Inc., a Nevada corporation (the “Pledgor”), in favor of SJC Lending LLC (the “Secured Party”).
Pledgor owns 100% of the capital stock of each of (i) Digital Power Corporation, a Delaware corporation (“Digital Power”), and TOG Technologies, Inc., a Nevada corporation (“TOGT” and together with Digital Power, collectively the “Subsidiaries”), as more particularly described on Schedule I attached hereto;
Pledgor issued and will issue after the date hereof secured convertible promissory notes as amended, modified or otherwise supplemented from time to time, (each a “Note” and collectively, the “Notes”) to the Secured Party pursuant to that certain Securities Purchase Agreement, by and between Pledgor and Secured Party, dated as of the date hereof (as amended and restated from time to time) (the “PurchaseAgreement”);
The Pledgor and the Subsidiaries granted the Secured Party a security interest in certain collateral as set forth in (i) that certain Security Agreement, by and amongst the Pledgor, the Subsidiaries and Secured Party, entered into on the date hereof (the “Security Agreement”), and (ii) that certain Intellectual Property Security Agreement, by and amongst the Pledgor, the Subsidiaries and Secured Party, entered into on the date hereof (the “IP Security Agreement”), including the capital stock or equity interests of each of the Subsidiaries; and
The Pledgor, as the sole holder of the capital stock or equity interests of each of the Subsidiaries, hereby acknowledges that it will directly and indirectly benefit from the issuance of the Notes to the Secured Party.
NOW, THEREFORE, in consideration of the agreements made by the Secured Party, Pledgor and the Subsidiaries for the benefit of Pledgor in the Purchase Agreement and the other Transaction Documents, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. When used herein, capitalized terms which are not otherwise defined have the meanings assigned thereto in the Security Agreement.
2. Pledge. As security for the payment and performance of all of the Obligations, Pledgor hereby pledges and grants to Secured Party, for the benefit of the Secured Party, a continuing security interest in and to, all of the following, whether now existing or hereafter owned, existing or arising (the “Subject Collateral”):
(a) All of the record and beneficial interest of Pledgor in each of the Subsidiaries, including, without limitation, the capital stock or equity interests described on Schedule I hereto and any investment property and general intangibles evidenced by or relating to such capital stock or equity interests (collectively, the “Subject Securities”), and all other property hereafter delivered to Secured Party in substitution for or in addition to any of the foregoing;
(b) all documents, certificates and/or instruments representing any of the foregoing and all cash, securities, profits, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing, except for any distributions with respect to the Subject Securities that are not prohibited under the Transaction Documents; and
(c) all products and proceeds of all of the foregoing.
Pledgor agrees to deliver to Secured Party, for the benefit of the Secured Party, any Subject Collateral which may at any time or from time to time come into the possession or control of Pledgor; and prior to the delivery thereof to Secured Party, such Subject Collateral shall be held by Pledgor separate and apart from its other property and in express trust for Secured Party. For the avoidance of doubt, the Pledgor shall endorse and deliver any original certificates representing the Subject Collateral to Secured Party promptly following the execution of this Agreement in accordance with the Security Agreement; provided, however, that such delivery shall occur only upon the occurrence and during the continuance of an Event of Default, or, prior to such time, may be held in escrow by Company counsel for the benefit of the Secured Party.
Pledgor further agrees to obtain the written acknowledgment of any custodian of the Subject Collateral, and that (i) all rights of Pledgor in the Subject Collateral are subject to such security interest granted hereunder, (ii) such custodian is authorized and instructed, upon written notice and receipt from Secured Party that an Event of Default exists, and only for so long as such Event of Default exists, to comply with any instruction of Secured Party with respect to disposition or transfer of the Subject Collateral, including any instruction to cease accepting instructions from Pledgor, and (iii) in the event of a conflict between written instructions given by Secured Party and instructions given by any Pledgor, Secured Party’s instructions shall control.
It is Pledgor’s intent that upon the occurrence and during the continuance of an Event of Default, and by virtue of this Agreement and such acknowledgments, the Secured Party shall be deemed to have “control” within the meaning of Section 9-106 of the Uniform Commercial Code as in effect in the State of Nevada (the “UCC”) with respect to the Subject Securities. Pledgor hereby agrees that it will not grant “control” (within the meaning of such Section of the UCC) to any Person other than Secured Party with respect to the Subject Securities.
3. Warranties; Further Assurances. Pledgor warrants to Secured Party that: (a) Pledgor is (or at the time of any future delivery, pledge, assignment or transfer thereof will be) the legal and equitable owner of the Subject Collateral owned by it free and clear of all liens, security interests and encumbrances of every description whatsoever other than the security interest created hereunder; and (b) the pledge and delivery of the Subject Collateral owned by it pursuant to this Agreement will create a valid first priority, perfected security interest in such Subject Collateral in favor of Secured Party and its assigns, for the benefit of the Secured Party.
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So long as any of the Obligations shall be outstanding, Pledgor (i) shall not, except to the extent permitted under the Transactions Documents, sell, assign, exchange, pledge or otherwise transfer, encumber, or grant any option, warrant or other right to purchase any Subject Securities pledged hereunder, or otherwise diminish or impair any of its rights in, to or under any of the Subject Collateral; (ii) hereby consents to the filing of such Uniform Commercial Code financing statements and other documents (and pay the costs of filing and recording or re-filing and re-recording the, same in all public offices reasonably deemed necessary or appropriate by Secured Party) and do such other acts and things, all as Secured Party may from time to time reasonably request, to establish and maintain a valid, first priority perfected security interest in the Subject Collateral (free of all other liens, claims and rights of third parties whatsoever) to secure the performance and payment of the Obligations; (iii) will execute and deliver to Secured Party such allonges, endorsements and similar documents relating to the Subject Collateral, satisfactory in form and substance to Secured Party, as Secured Party may reasonably request; (iv) will furnish Secured Party such information concerning the Subject Collateral as Secured Party may from time to time reasonably request in accordance with the Transaction Documents, and will permit Secured Party or any designee of Secured Party, from time to time and upon reasonable notice, to inspect, audit and make copies of and extracts from all records and all other papers in the possession of Pledgor which pertain to the Subject Collateral in accordance with the Transaction Documents, and will, upon request of Secured Party at any time when an Event of Default has occurred and is continuing, deliver to Secured Party copies of all such records and papers; and (v) represents and warrants that the Subject Collateral is not classified as, and agrees that it shall take no action to classify the Subject Collateral as, certified securities under the terms of Article 8 of the applicable Uniform Commercial Code.
4. Certain Remedies After Event of Default. Upon at least five (5) Business Days’ prior written notice to Pledgor identifying the Event of Default and affording a reasonable opportunity to cure (to the extent such default is curable), Secured Party may, after the occurrence and during the continuance of such Event of Default and acting in a commercially reasonable manner, take all or any of the following actions to the extent permitted by law: (a) appoint one or more sub-agents or nominees for the purpose of retaining physical possession of the Subject Collateral, (b) notify the parties obligated on any of the Subject Collateral to make payment directly to Secured Party of any amounts due or to become due thereunder, (c) endorse any checks, drafts or other writings in the name of Pledgor to allow collection of the Subject Collateral, (d) enforce collection of any of the Subject Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto, and (e) take control of any proceeds of the Subject Collateral.
5. Voting Rights, Distributions, etc. Notwithstanding any other provisions contained in this Agreement, so long as the Obligations remain outstanding, and so long as Secured Party has not given the notice referred to in Section 5(c) below:
(a) Pledgor shall be entitled to exercise any and all voting or consensual rights and powers and purchase or subscription rights (any exercise by Pledgor of such purchase or subscription rights may be made only from funds of Pledgor not comprising the Subject Collateral) only relating or pertaining to the Subject Collateral or any part thereof for any purpose; provided, that no vote shall be cast, right exercised or other action taken outside the ordinary course of business or with respect to the Subject Collateral which would in any respect be inconsistent with or result in any violation of any provision of the Transaction Documents.
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(b) Pledgor shall be entitled to receive and retain any and all interest or cash distributions payable on or in respect of the Subject Collateral which are paid in cash if such interest or other cash distributions are not prohibited by the Transaction Documents, but all interest and cash distributions in respect of the Subject Collateral or any part thereof made in Subject Securities, whether resulting from a subdivision, combination or reclassification of Subject Collateral or any part thereof or received in exchange for Subject Collateral or any part thereof or as a result of any merger, consolidation, acquisition or other exchange of assets to which any Person who issues a Subject Security may be a party or otherwise or as a result of any exercise of any purchase or subscription rights, shall be and become part of the Subject Collateral hereunder and, if received by Pledgor, shall be forthwith delivered to Secured Party in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank) to be held for the purposes of this Agreement.
(c) Upon written notice delivered to any Pledgor from Secured Party that an Event of Default exists, and at all times during the continuance of such Event of Default, all rights and powers which any Pledgor is entitled to exercise pursuant to this Section 5, and all rights of any Pledgor to receive and retain interest and cash distributions pursuant to Section 5(b) hereof, shall forthwith cease, and all such rights and powers shall thereupon become vested in Secured Party which shall have, during the continuance of such Event of Default the sole and exclusive authority to exercise such rights and powers and to receive such dividends, interest or other distributions. Any and all money and other property paid over to or received by Secured Party pursuant to this Section 5(c) shall be retained by Secured Party as additional Subject Collateral hereunder and applied in accordance with the provisions of the Transaction Documents. Any distributions and other amounts which are received by any Pledgor contrary to the Transaction Documents shall be received in trust for the benefit of the Secured Party, shall be segregated from the other funds of Pledgor and shall be paid over to the Secured Party in the same form as so received (with any necessary endorsement requested by the Secured Party).
6. Remedies. Whenever an Event of Default shall exist, Secured Party may exercise from time to time any rights and remedies available to it under the UCC or under the Transaction Documents or other applicable law. Without limiting the foregoing, whenever an Event of Default shall exist, Secured Party, to the extent necessary to satisfy the Obligations, (a) may, to the fullest extent permitted by applicable law, without notice, advertisement, hearing or process of law of any kind, and acting in a commercially reasonable manner (i) sell any or all of the Subject Collateral, free of all rights and claims of any Pledgor therein and thereto, at any public or private sale and (ii) bid for and purchase any or all of the Subject Collateral at any such public sale and (b) shall have the right, for and in the name, place and stead of any Pledgor, to execute endorsements, assignments and other instruments of conveyance or transfer with respect to all or any of the Subject Collateral. Except as set forth herein, Pledgor hereby expressly waives, to the fullest extent permitted by applicable law, any and all notices, advertisements, hearings or process of law in connection with the exercise by Secured Party of any of its rights and remedies during the continuance of an Event of Default. Any notification of intended disposition of any of the Subject Collateral shall be deemed reasonably and properly given if delivered to Pledgor at least ten (10) days before such disposition, including the time and place of any such public sale or other disposition. Any proceeds of any of the Subject Collateral shall be applied by Secured Party in accordance with the Security Agreement, including to the payment of reasonable expenses in connection with the Subject Collateral, including, without limitation, reasonable attorneys’ fees and legal expenses. After payment in full of all Obligations, any excess shall be delivered to Pledgor or as a court of competent jurisdiction shall direct.
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Secured Party is hereby authorized to comply with any limitation or restriction in connection with any sale of Subject Collateral as it may be advised by counsel is necessary in order to (a) avoid any violation of applicable law or (b) obtain any required approval of the sale or of the purchase by any governmental authority or official, and Pledgor agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner and that Secured Party shall not be liable or accountable to any Pledgor for any discount allowed by reason of the fact that such Subject Collateral is sold in compliance with any such limitation or restriction. Pledgor waives any right it may now or hereafter have to require Secured Party to marshal any of the collateral from time to time securing the Obligations guaranteed by any Pledgor.
7. Waiver of Transfer Restrictions. Pledgor and the Subsidiaries hereby consent to the terms and conditions contained in this Agreement and, to the transactions contemplated thereby. Without limiting the foregoing, Pledgor and the Subsidiaries agree that they shall not grant any rights of first refusal, options to purchase or other conditions or restrictions affecting the transfer of any of the Subject Collateral and that upon Secured Party’s exercise of its rights and remedies under this Agreement, Secured Party, as purchaser at a foreclosure sale of the Subject Collateral or any such party’s designee shall be admitted as an owner of the Subsidiaries with all ownership rights accruing to it (including, without limitation, all rights to distributions and voting) without the need to obtain the consent of any owner or the Subsidiaries or to provide or comply with any right of first refusal or option to purchase with respect to any of the Subject Collateral in favor of any owner, the Subsidiaries or any other Person, notwithstanding anything in the governing documents of the Subsidiaries to which Pledgor is now or hereafter a party with respect to any of the Subject Collateral or otherwise to the contrary or in conflict thereof. Such waiver set forth in this Section 7 shall apply solely to transfers effected by Secured Party in connection with enforcement of its remedies following an Event of Default.
8. Attorney in Fact. Pledgor hereby irrevocably appoints Secured Party as its limited attorney-in-fact in accordance with the powers granted in connection with this Agreement (without requiring Secured Party to act as such), with full power of substitution, which appointment as limited attorney-in-fact is irrevocable during the term of this Agreement, to take any action Secured Party deems necessary upon the occurrence and during the continuation of an Event of Default to perfect, protect and realize upon its lien and first priority security interest in the Subject Collateral, including the execution and delivery of any and all documents or instruments related to the Subject Collateral in Pledgor’s name, or otherwise to effect fully the purpose, terms and conditions of this Agreement and the other Transaction Documents, and said appointment shall create in Secured Party a power coupled with an interest.
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9. General.
(a) Secured Party shall exercise the same degree of care it customarily uses for similar collateral in its possession if it takes such action for that purpose as Pledgor shall request in writing, but failure of Secured Party to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and no failure of Secured Party to preserve or protect any rights with respect to the Subject Collateral against prior parties, or to do any act with respect to preservation of the Subject Collateral not so requested by Pledgor, shall be deemed a failure to exercise reasonable care in the custody or preservation of any Subject Collateral.
(b) No delay on the part of Secured Party in exercising any right, power or remedy shall operate as a waiver thereof, and no single or partial exercise of any such right, power or remedy shall preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. No amendment, modification or waiver of, or consent with respect to, any provision of this Agreement shall be effective unless the same shall be in writing and signed and delivered by Secured Party and Pledgor, and then such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
(c) All obligations of Pledgor and all rights, powers and remedies of Secured Party expressed herein are in addition to all other rights, powers and remedies possessed by them, including, without limitation, those provided by applicable law or in any other written instrument or agreement relating to any of the Obligations or any security therefor.
(d) This Agreement shall be binding upon Pledgor and Secured Party and their respective permitted successors and assigns in accordance with the Transaction Documents, and shall inure to the benefit of Pledgor and Secured Party and the permitted successors and assigns of Secured Party in accordance with the Transaction Documents.
10. Governing Law; Jurisdiction; Service of Process; Venue.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS.
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(b) BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AGAINST ANY PLEDGOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION 10. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
11. (a) TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED, PLEDGOR AND SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY ANY RIGHT, POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR WITH RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PARTY; AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. PLEDGOR FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL CANNOT OR HAS NOT BEEN WAIVED. FURTHER, PLEDGOR HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF SECURED PARTY, INCLUDING SECURED PARTY’S COUNSEL, HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SECURED PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. PLEDGOR ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO SECURED PARTY’S ACCEPTANCE OF THIS AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS, AS APPLICABLE.
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(b) EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF PROCESS AND IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN THE SECURITY AGREEMENT, NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
12. Transaction Documents. Pledgor hereby agrees to be bound by any covenants stated to be binding upon them in the Transaction Documents and such covenants are hereby incorporated by reference as if fully set forth herein.
13. Modification. This Agreement shall not be modified, supplemented, or terminated, nor any provision hereof waived, except by a written instrument signed by the party against whom enforcement thereof is sought, and then only to the extent expressly set forth in such writing.
14. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together constitute a fully executed Agreement even though all signatures do not appear on the same document. Receipt of an executed signature page to this Agreement by facsimile, attachment to an email or other electronic transmission shall constitute effective delivery thereof.
15. Recitals. The recital and introductory paragraphs hereof are a part hereof, form a basis for this Agreement and shall be considered prima facie evidence of the facts and documents referred to therein.
[Remainder of Page Intentionally Blank; Signatures on following page]
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the day and year first written above.
| Address for notices: | PLEDGOR: | |
|---|---|---|
| 1421 McCarthy Blvd. | TURNONGREEN, INC., | |
| Milpitas, CA 95035 | a Nevada corporation | |
| Attention: Amos Kohn | ||
| Email: akohn@turnongreen.com | ||
| With a copy to: | By: | |
| Name: | Amos Kohn | |
| Hyperscale Data, Inc. | Title: | Chief Executive Officer |
| 122 East 42nd Street, 50th Floor | ||
| Suite 5000 | ||
| New York, NY 10168 | ||
| Attention: Donte Bronaugh | ||
| Email: dbronaugh@ault.com |
[Signature Page to Pledge Agreement]
| Address for Notices: | SECURED PARTY: | |
|---|---|---|
| 120 Bloomingdale Road, Suite 105 | SJC LENDING LLC | |
| White Plains, NY 10605 | ||
| Attention: Steven J. Caspi | By: | |
| Email: steve@caspidevelopment.com | Name: | Steven J. Caspi |
| Title: | Sole Member | |
| With a copy to: | ||
| Olshan Frome Wolosky LLP | ||
| 1325 Avenue of the Americas | ||
| New York, NY 10019 | ||
| Attention: Kenneth Schlesinger | ||
| Email: KSchlesinger@olshanlaw.com |
[Signature Page to Pledge Agreement]
ACKNOWLEDGMENT
The Subsidiaries hereby (i) acknowledge receipt of a copy of the foregoing Pledge Agreement, (ii) agrees to the terms of, the Pledge Agreement and to promptly to note on its books and records the security interests granted under such Pledge Agreement, (iii) waives any rights or requirement at any time hereafter to receive a copy of such Pledge Agreement in connection with the registration of any of the Subject Collateral in the name of Secured Party or its nominee or the exercise of voting rights by Secured Party, and (iv) after written notice from Secured Party that an Event of Default has occurred and is continuing, agrees, that in acting upon the instructions of Secured Party, it will not require the further consent of, or seek further instruction from, any Pledgor at any time. The undersigned will not permit any Pledgor to opt into Article 8 of the applicable Uniform Commercial Code with respect to its Subject Securities without the express prior written consent of Secured Party.
| Acknowledged and Agreed: | |
|---|---|
| DiGITAL POWER CORPORATION, | |
| a Delaware corporation | |
| By: | |
| Name: | Amos Kohn |
| Title: | Chief Executive Officer |
| TOG TECHNOLOGIES, INC., | |
| a Nevada corporation | |
| By: | |
| Name: | Amos Kohn |
| Title: | Chief Executive Officer |
SCHEDULE I
SUBJECT SECURITIES
| Name of Entity | Pledgor | Type of Capital<br><br> <br>Stock or Equity<br><br> <br>Interests | Percentage<br><br> <br>of<br><br> <br>Ownership |
|---|---|---|---|
| Digital Power Corporation | TurnOnGreen, Inc. | Common Stock | 100% |
| TOG Technologies, Inc. | TurnOnGreen, Inc. | Common Stock | 100% |