Equibles

8-K

Catheter Precision, Inc. (VTAK)

8-K 2026-03-09 For: 2026-03-06
View Original
Added on April 08, 2026

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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): March 6, 2026

Catheter Precision, Inc.
(Exact name of registrant as specified in its charter)
Delaware 001-38677 38-3661826
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(State or other jurisdiction<br><br> <br>of incorporation) (Commission<br><br> <br>File Number) (IRS Employer<br><br> <br>Identification No.)
1670 Highway 160 West<br><br> <br>Suite 205<br><br> <br>Fort Mill, SC 29708
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(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code: (973) 691-2000

(Former name or former address, if changed since last report)

Not Applicable

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:

Title of each class Trading Symbol(s) Name of each exchange on which registered
Common Stock, par value $0.0001 per share VTAK NYSE American

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.

Private Placement Financing

Securities Purchase Agreement

On March 9, 2026, Catheter Precision, Inc. (the “Company”) entered into a securities purchase agreement (the “Financing Purchase Agreement”) with certain accredited investors (collectively, the “Purchasers”) for the issuance and sale in a private placement (the “Private Placement Financing”) of an aggregate of 1,853 shares of the Company’s Series C-1 Convertible Preferred Stock, with a par value of $0.0001 per share and a stated value of $1,000 per share, initially convertible into up to 1,295,805  shares of common stock, par value $0.0001 per share (“Common Stock”), at an initial conversion price of $1.43 per share (the “Series C-1 Preferred Stock”) for an aggregate purchase price of $1,853,000; provided that, following the Effective Date (as defined below), the conversion price shall thereafter be reduced to equal the lower of (i) the conversion price on the trading day immediately prior to the Effective Date, and (ii) 80% of the lower of (i) the official closing price of the Company’s Common Stock immediately prior to the applicable date of determination and (ii) the five (5)-day volume-weighted average price of the Common Stock immediately prior to such applicable date of determination (the “Applicable Price”), on the Effective Date, and (B) following the Stockholder Approval Date (as defined below), the conversion price shall thereafter be reduced to equal the lower of (i) the conversion price on the trading day immediately prior to the Stockholder Approval Date, and (ii) 80% of the Applicable Price on the Stockholder Approval Date; subject to the Floor Price Condition (as defined herein), which may be waived in the Company’s sole discretion. In addition, the Series C-1 Conversion Price is subject to customary adjustments for stock dividends, stock splits, reclassifications, stock combinations and the like (subject to certain exceptions). The shares of Series C-1 Preferred Stock will be convertible into shares of Common Stock beginning on the date of the receipt of stockholder approval of, under Section 713 of the NYSE American LLC Company Guide (“Section 713”), the issuance of shares of Common Stock in excess of 19.99% of the Company’s issued and outstanding shares of Common Stock at prices below the “Minimum Price” (as defined in Section 713) as of the date of the Financing Purchase Agreement pursuant to the terms of the Preferred Stock (as defined herein) and the Series D Preferred Stock (as defined herein) (the “Issuance Approval”).

Additionally, pursuant to the Financing Purchase Agreement, the Purchasers agreed to purchase (i) 1,853 shares of the Company’s newly-designated Series C-2 Convertible Preferred Stock, with a par value of $0.0001 per share and a stated value of $1,000 per share, for an aggregate purchase price of $1,853,000.00 (the “Series C-2 Preferred Stock”), and (ii) 1,853 shares of the Company’s newly-designated Series C-3 Convertible Preferred Stock, with a par value of $0.0001 per share and a stated value of $1,000 per share, for an aggregate purchase price of $1,853,000.00 (the “Series C-3 Preferred Stock” and, together with the Series C-1 Preferred Stock and Series C-2 Preferred Stock, the “Initial Preferred Stock”). The shares of Series C-2 Preferred Stock and Series C-3 Preferred Stock will be convertible into shares of Common Stock. The closing of each of the Series C-2 Preferred Stock and Series C-3 Preferred Stock (each, an “Additional Closing”) is subject to the satisfaction of customary closing conditions, including, (A) the approval of the Company’s stockholders of the Issuance Approval (collectively, the “Stockholder Approval” and the date such Stockholder Approval is obtained, the “Stockholder Approval Date”), and (B) solely with respect to the Series C-3 Preferred Stock, the Registration Statement (as defined herein) being declared effective by the Securities and Exchange Commission (the “SEC”) (the date such Registration Statement is declared effective, the “Effective Date”).

The initial conversion price of the Series C-2 Preferred Stock will be equal to the lower of: (A) eighty percent (80%) of (i) the Applicable Price on the closing date of the Series C-2 Preferred Stock (the “Second Closing Date”), (ii) the Applicable Price on the Stockholder Approval Date, and (iii) the Applicable Price on the Effective Date (if such date occurred prior to the Second Closing Date) and (B) lowest conversion price of outstanding shares of Preferred Stock (as defined herein); provided that, if the Effective Date has not occurred prior to the Second Closing Date, following the Effective Date, the conversion price will thereafter be reduced to equal the lower of (i) the conversion price on the trading day immediately prior to the Effective Date, and (ii) eighty percent (80%) of the Applicable Price on the Effective Date; provided that, such Series C-2 Preferred Stock conversion price may not be less than $0.35 (the “Floor Price Condition”); provided further that, the Company may waive, in its sole discretion, the Floor Price Condition.

The conversion price of the Series C-3 Preferred Stock will be equal to the lower of: (A) eighty percent (80%) of (i) the Applicable Price on the closing date of the Series C-3 Preferred Stock, (ii) the Applicable Price on the Stockholder Approval Date, and (iii) the Applicable Price on the Effective Date and (B) lowest conversion price of outstanding shares of Preferred Stock (as defined herein); provided that, such Series C-3 Preferred Stock conversion price may not be less than the Floor Price Condition; provided further that, the Company may waive, in its sole discretion, the Floor Price Condition.

Additionally, pursuant to the Purchase Agreement, the Purchasers may elect in their sole discretion to purchase up to a total aggregate of $35,559,326 shares of newly-designated Series C-4 Convertible Preferred Stock, with a par value of $0.0001 per share and a stated value of $1,000 per share (the “Series C-4 Preferred Stock” and, together with the Initial Preferred Stock, the “Preferred Stock”), in one or more closings. The conversion price of the Series C-4 Preferred Stock will be equal to the lower of: (A) eighty percent (80%) of (i) the Applicable Price on the closing date of the Series C-4 Preferred Stock, (ii) the Applicable Price on the Stockholder Approval Date, and (iii) the Applicable Price on the Effective Date and (B) lowest conversion price of outstanding shares of the Initial Preferred Stock; provided that, such Series C-4 Preferred Stock conversion price may not be less than Floor Price Condition; provided further that, the Company may waive, in its sole discretion, the Floor Price Condition.

The Private Placement Financing is exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the exemption for transactions by an issuer not involving any public offering under Section 4(a)(2) of the Securities Act and Rule 506 of Regulation D of the Securities Act and in reliance on similar exemptions under applicable state laws. Each of the Purchasers has represented to the Company that it is an accredited investor within the meaning of Rule 501(a) of Regulation D and that it is acquiring the applicable securities for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof. The shares of Preferred Stock were offered and sold without any general solicitation by the Company or its representatives.

The closing of the Series C-1 Preferred Stock (the “First Closing”) is expected to occur on or about March 10, 2026 (the “First Closing Date”). The gross proceeds from the First Closing are expected to be $1,853,000.00, before estimated offering expenses payable by the Company. The Company intends to use the net proceeds received from the First Closing and any Additional Closing for (i) general corporate purposes and working capital purposes, (ii) to restructure the Company’s legacy catheter business, including a potential sale of various medical devices owned by the Company, (iii) to satisfy, settle, eliminate, or otherwise resolve legacy liabilities and obligations and to simplify the Company’s capital structure, and (iv) to reduce operating expenses and cash burn and position of the Company as a streamlined public company with a clean and simplified balance sheet.

In connection with the Private Placement Financing, pursuant to an engagement letter (the “Engagement Letter”) with Dawson James Securities, Inc. (the “Placement Agent”) the Company engaged the Placement Agent to act as exclusive placement agent in connection with the Private Placement Financing, pursuant to which, the Company agreed to reimburse and pay certain expenses to the Placement Agent; provided that, such reimbursement and expenses will not be paid until such time that the Company has received $3,850,000.00 in gross proceeds from the Private Placement Financing. The Company has agreed to pay a 7.7% cash fee on all monies raised above $3,850,000; with no Placement Agent fee owed on the first $3,850,000.00 raised.

The Financing Purchase Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company and the Purchasers, including for liabilities under the Securities Act and other obligations of the parties and termination provisions. Among other covenants, the Financing Purchase Agreement requires the Company to hold a meeting of its stockholders at the earliest practical date, but in no event, no later than April 10, 2026, which is sixty (60) days following the First Closing Date (as defined in that certain Securities Purchase Agreement, dated as of February 6, 2026, by and among the Company and the purchasers signatory thereto), for the purpose of obtaining the Stockholder Approval. If the Company does not obtain the Stockholder Approval at the first meeting, the Company is required call a meeting every ninety (90) days thereafter to seek such Stockholder Approval until the earlier of the date Stockholder Approval is obtained or the shares of Preferred Stock are no longer outstanding.

The terms of the Series C-1 Preferred Stock are as set forth in the Series C-1 Certificate of Designations, attached as Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on February 6, 2026 (the “Series C-1 Certificate of Designations”) and the terms of the Series C-2 Preferred Stock, Series C-3 Preferred Stock, Series C-4 Preferred Stock and Series D Preferred Stock (as defined herein) are as set forth in the form of Certificate of Designations, attached hereto as Exhibit 3.2 to this Current Report on Form 8-K (the “Certificate of Designations”). The Certificate of Designations with respect to the Series C-1 Preferred Stock was filed with the Secretary of State for the State of Delaware on February 9, 2026.

Holders of the Preferred Stock and Series D Preferred Stock will be entitled to receive dividends when and as declared by the board of directors of the Company (the “Board”), from time to time, in its sole discretion, which dividends will be paid by the Company out of funds legally available therefor, payable, subject to the conditions and other terms of the Series C-1 Certificate of Designations and Certificate of Designations, as applicable, in cash, in securities of the Company or using assets as determined by the Board on the stated value of such Preferred Stock.

Except as otherwise provided in the Series C-1 Certificate of Designations and the Certificate of Designations, as applicable, or as otherwise required by law, the Preferred Stock and Series D Preferred Stock have, or will have, no voting rights. However, as long as any shares of the applicable Preferred Stock or Series D Preferred Stock are outstanding, the Company will not, without the affirmative vote of the Holders of a majority of the then outstanding shares of such applicable preferred stock, (a) alter or change adversely the powers, preferences or rights given to such preferred stock or alter or amend the applicable certificate of designations related to such applicable preferred stock, (b) amend its certificate of incorporation or other charter documents in any manner that adversely affects any rights of the holders of such applicable preferred stock, (c) increase the number of authorized shares of such applicable preferred stock, or (d) enter into any agreement with respect to any of the foregoing.

There is no established public trading market for the Preferred Stock or Series D Preferred Stock and the Company does not intend to list any of the Preferred Stock or Series D Preferred Stock on any national securities exchange or nationally recognized trading system.

FLYTE Acquisition

In connection with the Private Placement Financing and on March 9, 2026, the Company entered into a Stock Purchase Agreement (the "Acquisition Purchase Agreement") with Creatd, Inc., a Nevada corporation ("Creatd" or the "Seller"), pursuant to which the Company agreed to acquire from Creatd (i) 800,200 shares (the “FLYTE Shares”) of the issued and outstanding common stock, par value $0.001 per share (“FLYTE Common Stock”), of Fly Flyte, Inc. ("FLYTE"), representing 80.02% of the issued and outstanding FLYTE Common Stock, and (ii) 100% of the membership interests (the “Membership Interests” and, together with the FLYTE Shares, the “Shares”) of Ponderosa Air, LLC ("Ponderosa") (collectively, the "Acquisition"). Upon consummation of the Acquisition, the Company will own 100% of the issued and outstanding FLYTE Common Stock and 100% of the Membership Interests of Ponderosa.

In consideration for Creatd agreeing to sell in a private placement the Shares, the Company agreed to pay consideration equal to $11,554,827, payable as follows: (A) cash consideration equal to $5,776,827 consisting of (i) $776,827 due at the closing, and (ii) $5,000,000 in principal amount of a promissory note (the “Note”), and (B) 5,778 shares of the Company’s preferred stock, expected to be designated as Series D Convertible Preferred Stock, with a par value of $0.0001 per share and a stated value of $1,000 per share (“Stated Value”), equal to a Stated Value of $5,778,000 (the “Series D Preferred Stock”). The closing (the “Series D Closing”) of the purchase and sale of the Shares (the date of such closing, the “Series D Closing Date”), the payment of the Consideration and the issuance of the Series D Preferred Stock is subject to a number of closing conditions as further described in the Acquisition Purchase Agreement.

The Note

The Note bears an interest rate of 0% per annum and is payable in installments (each, an “Installment Date”) until December 15, 2026. If any payment is not made within three business days following the applicable Installment Date, interest will accrue at a rate equal to 4% per annum. Upon the occurrence and continuation of an event of default, the holder may declare the entire unpaid principal balance, together with all accrued interest, penalties and late fees, immediately due and payable, and the outstanding principal balance will bear default interest at 18% per annum.

The Series D Preferred Stock

The issuance of the shares of Series D Preferred Stock is subject to the receipt of stockholder approval of, under Section 713, the issuance of shares of Common Stock in excess of 19.99% of the Company’s issued and outstanding shares of Common Stock at prices below the “Minimum Price” (as defined in Section 713) as of the date of the Acquisition Purchase Agreement pursuant to the terms of the Series D Preferred Stock.

Upon issuance, the Series D Preferred Stock will be convertible at price equal to the Applicable Price immediately prior to the Series D Closing Date; provided that, following the Effective Date, the conversion price shall thereafter be reduced to equal the lower of (i) the conversion price on the trading day immediately prior to the Effective Date, and (ii) the Applicable Price on the Effective Date; subject to the Floor Price Condition, which may be waived in the Company’s sole discretion.

The Acquisition Purchase Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification obligations of the Company, including for liabilities under the Securities Act and other obligations of the parties and termination provisions.

Registration Rights Agreement

In connection with the Private Placement Financing and the Acquisition, the Company entered into a registration rights agreement (the “Registration Rights Agreement”), dated as of March 9, 2026, with the Purchasers and Creatd, pursuant to which the Company agreed to prepare and file a registration statement (the “Registration Statement”) with the SEC registering the resale of the Common Stock underlying the Initial Preferred Stock no later than 30 days following the First Closing Date, and to use best efforts to have the registration statement declared effective as promptly as practical thereafter, and in any event no later than 60 days following the First Closing Date (or 120 days following the date of the Registration Rights Agreement in the event of a “full review” by the SEC). In addition, pursuant to the Registration Rights Agreement, the Company agreed to prepare and file an additional registration statement with the SEC registering the resale of the Common Stock underlying the Series C-4 Preferred Stock no later than 30 days following the closing date of the Series C-4 Preferred Stock (the “Series C-4 Closing Date”), and to use best efforts to have the registration statement declared effective as promptly as practical thereafter, and in any event no later than 60 days following the Series C-4 Closing Date (or 120 days following the date of the Registration Rights Agreement in the event of a “full review” by the SEC).

The foregoing descriptions of terms and conditions of the Certificate of Designations, the Financing Purchase Agreement, the Acquisition Purchase Agreement and the Registration Rights Agreement do not purport to be complete and are qualified in their entirety by the full text of the Certificate of Designations, the Financing Purchase Agreement, the Acquisition Purchase Agreement and the Registration Rights Agreement, forms of which are attached hereto as Exhibits 3.1, 10.1, 10.2 and 10.3, respectively.

Item 3.02 Unregistered Sales of Equity Securities.

The matters described in Item 1.01 of this Current Report on Form 8-K related to the Private Placement Financing and the Acquisition are incorporated herein by reference. In connection with the issuance of the Series C-1 Preferred Stock in the Private Placement Financing and the Series D Preferred Stock issuable in connection with the Acquisition each as described in Item 1.01, the Company relied upon the exemption from registration provided by Section 4(a)(2) of the Securities Act and Regulation D promulgated thereunder for transactions not involving a public offering.

This report will not constitute an offer to sell or a solicitation of an offer to buy nor will there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or jurisdiction.

Item 3.03 Material Modification to Rights of Security Holders.

The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

In connection with the entrance into the Financing Purchase Agreement, the holders of the majority of the outstanding shares of Series C-1 Preferred Stock agreed to amend the Series C-1 Certificate of Designations by filing a Certificate of Amendment (“Certificate of Amendment”) to the Series C-1 Certificate of Designations with the Secretary of State of the State of Delaware (the “Secretary of State”) to increase the number of authorized shares of Series C-1 Preferred Stock from 1,783.33 to 3,636.33, in order to authorize a sufficient number of shares of Preferred Stock for the transactions contemplated by the Acquisition Purchase Agreement.

On March 6, 2026, the Company filed the Certificate of Amendment with the Secretary of State, thereby amending the Certificate of Designations. The Certificate of Amendment became effective with the Secretary of State upon filing.

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit<br> No. Description
3.1 Form of Certificate of Designations of Convertible Preferred Stock.
10.1* Securities Purchase Agreement, dated March 9, 2026, by and among the Company and the investors signatory thereto
10.2* Stock Purchase Agreement, dated March 9, 2026, by and among the Company and the investors signatory thereto
10.3 Registration Rights Agreement, dated March 9, 2026, by and among the Company and the investors signatory thereto
104 Cover page Interactive Data File (embedded within the Inline XBRL document)

* Certain of the schedules (and similar attachments) to this exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K under the Securities Act because they do not contain information material to an investment or voting decision and that information is not otherwise disclosed in the exhibit or the disclosure document. The registrant hereby agrees to furnish a copy of all omitted schedules (or similar attachments) to the SEC upon its request.

SIGNATURES

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.

Date: March 9, 2026
CATHETER PRECISION, INC.
By: /s/ Philip Anderson
Philip Anderson
Chief Financial Officer

ex_929495.htm

Exhibit 3.1

CATHETER PRECISION, INC.

CERTIFICATE OF DESIGNATION OF PREFERENCES,

RIGHTS AND LIMITATIONS

OF

SERIES [C][D] **** CONVERTIBLE PREFERRED STOCK

The undersigned, Philip Anderson, does hereby certify that:

1. I am the Chief Financial Officer of Catheter Precision, Inc., a Delaware corporation (the “Corporation”).
2. The Corporation is authorized to issue 10,000,000 shares of preferred stock, of which 2,229 have been issued and are outstanding.
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3. The following resolutions were duly adopted by the board of directors of the Corporation (the “Board of Directors”):
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WHEREAS, the certificate of incorporation of the Corporation provides for a class of its authorized stock known as preferred stock, consisting of 10,000,000 shares, $0.0001 par value per share, issuable from time to time in one or more series;

WHEREAS, the Board of Directors is authorized to fix the dividend rights, dividend rate, voting rights, conversion rights, rights and terms of redemption and liquidation preferences of any wholly unissued series of preferred stock and the number of shares constituting any series and the designation thereof, of any of them; and

WHEREAS, it is the desire of the Board of Directors, pursuant to its authority as aforesaid, to fix the rights, preferences, restrictions and other matters relating to a series of the preferred stock, which shall consist of, except as otherwise set forth in the Purchase Agreement (as defined herein), up to [ ] shares of the preferred stock which the Corporation has the authority to issue, as follows:

NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby provide for the issuance of a series of preferred stock for cash or exchange of other securities, rights or property and does hereby fix and determine the rights, preferences, restrictions and other matters relating to such series of preferred stock as follows:

TERMS OF PREFERRED STOCK

Section 1. Definitions. In addition to the terms defined elsewhere in this Certificate of Designation: (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Purchase Agreement (as defined herein), and (b) the following terms shall have the meanings set forth below:

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

“Alternate Consideration” shall have the meaning set forth in Section 7(e).

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

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

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

“Buy-In” shall have the meaning set forth in Section 6(c)(iv).

“Change of Control Transaction” means the occurrence after the date hereof of any of (a) an acquisition after the date hereof by an individual or legal entity or “group” (as described in Rule 13d-5(b)(1) promulgated under the Exchange Act) of effective control (whether through legal or beneficial ownership of capital stock of the Corporation, by contract or otherwise) of in excess of 50% of the voting securities of the Corporation (other than by means of conversion or exercise of Preferred Stock and the Securities issued together with the Preferred Stock), (b) the Corporation merges into or consolidates with any other Person, or any Person merges into or consolidates with the Corporation and, after giving effect to such transaction, the stockholders of the Corporation immediately prior to such transaction own less than 50% of the aggregate voting power of the Corporation or the successor entity of such transaction, or (c) the Corporation sells or transfers all or substantially all of its (and all of its Subsidiaries, taken as a whole) assets to another Person and the stockholders of the Corporation immediately prior to such transaction own less than 50% of the aggregate voting power of the acquiring entity immediately after the transaction.

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

“Common Stock” means the Corporation’s common stock, par value $0.0001 per share, and stock of any other class of securities into which such securities may hereafter be reclassified or changed.

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

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

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

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

“Effective Date” means the date that the Registration Statement filed by the Corporation pursuant to the Registration Rights Agreement is first declared effective by the Commission.

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

“Fundamental Transaction” shall have the meaning set forth in Section 7(e).

“GAAP” means United States generally accepted accounting principles.

“Holder” shall have the meaning given such term in Section 2.

“Indebtedness” means (a) any liabilities for borrowed money or amounts owed in excess of $350,000 (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Corporation’s balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, and (c) the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.

“Intellectual Property Rights” means, with respect to the Corporation and its Subsidiaries, all of their rights or licenses to use all trademarks, trade names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and registrations therefor.

“Issuable Maximum” shall have the meaning set forth in Section 6(e).

“Junior Securities” means the Common Stock and all other Common Stock Equivalents of the Corporation other than those securities which are explicitly senior or pari passu to the Preferred Stock in dividend rights or liquidation preference; provided that, for the avoidance of doubt, the Preferred Stock hereunder and the shares of preferred stock issued or issuable pursuant to the Other Purchase Agreement shall be deemed pari passu to each other.

“Liens” means a lien, charge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.

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

“Applicable Price” means the lower of (A) the official closing price of the Corporation’s Common Stock immediately prior to the applicable date of determination or (B) the five (5) day volume-weighted average price of the Corporation’s Common Stock immediately prior to the applicable date of determination.

“New York Courts” shall have the meaning set forth in Section 9(d).

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

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

“Other Purchase Agreement” means that certain securities purchase agreement, dated as of [ ], 2026, by and between the Corporation and [ ].

“Permitted Indebtedness” means (a) the Indebtedness existing on the Original Issue Date and (b) lease obligations and purchase money indebtedness of up to $2,500,000, in the aggregate, incurred in connection with the acquisition of capital assets and lease obligations with respect to newly acquired or leased assets.

“Permitted Lien” 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 Corporation) have been established in accordance with GAAP, (b) Liens imposed by law which were incurred in the ordinary course of the Corporation’s business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in the ordinary course of the Corporation’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 Corporation 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) Liens incurred in connection with Permitted Indebtedness under clause (a) thereunder, and (d) Liens incurred in connection with Permitted Indebtedness under clause (b) thereunder, provided that such Liens are not secured by assets of the Corporation or its Subsidiaries other than the assets so acquired or leased.

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

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

“Purchase Agreement” means the Securities Purchase Agreement, dated as of March 9, 2026, by and among the Corporation and the original Holders, as amended, modified or supplemented from time to time in accordance with its terms.

“Registration Rights Agreement” means the Registration Rights Agreement, dated as of March 9, 2026, among the Corporation and the investors signatory thereto.

“Registration Statement” shall have the meaning ascribed to such term in the Purchase Agreement.

“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Securities” means the Preferred Stock and the Conversion Shares.

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

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

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

“Stockholder Approval” shall have the meaning ascribed to such term in the Purchase Agreement.

“Subsidiary” shall have the meaning set forth in the Purchase Agreement.

“Successor Entity” shall have the meaning set forth in Section 7(e).

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

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

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

“Transfer Agent” shall have the meaning ascribed to such term in the Purchase Agreement.

Section 2.    Designation, Amount and Par Value. The series of preferred stock shall be designated as its Series [C] [D] Convertible Preferred Stock (the “Preferred Stock”) and the number of shares so designated shall be up to [ ], which shall not be subject to increase without the written consent of the holders (each, a “Holder” and collectively, the “Holders”) of a majority of the then outstanding shares of the Preferred Stock. Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value equal to $1,000.00 (the “Stated Value”).

Section 3.    Dividends.

a) Dividends. Holders of the Preferred Stock shall be entitled to receive dividends (“Dividends”) when and as declared by the Board of Directors, from time to time, in its sole discretion, which Dividends shall be paid by the Corporation out of funds legally available therefor, payable, subject to the conditions and other terms hereof, in cash, in securities of the Corporation, or using assets as determined by the Board of Directors on the Stated Value of such share of Preferred Stock. No other dividends shall be paid on shares of Preferred Stock.
b) Other Securities. So long as any Preferred Stock shall remain outstanding, neither the Corporation nor any Subsidiary thereof shall redeem, purchase or otherwise acquire directly or indirectly any Junior Securities. So long as any Preferred Stock shall remain outstanding, neither the Corporation nor any Subsidiary thereof shall directly or indirectly pay or declare any dividend or make any distribution upon (other than a dividend or distribution described in Section 7 or dividends due and paid in the ordinary course on preferred stock of the Corporation at such times when the Corporation is in compliance with its payment and other obligations hereunder), nor shall any distribution be made in respect of, any Junior Securities, nor shall any monies be set aside for or applied to the purchase or redemption (through a sinking fund or otherwise) of any Junior Securities or shares pari passu with the Preferred Stock ([Series C: other than with respect to shares of preferred stock issuable pursuant to the Other Purchase Agreement][Series D: other than with respect to shares of Series C Convertible Preferred Stock]).
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Section 4.    Voting Rights. Except as otherwise provided herein or as otherwise required by law, the Preferred Stock shall have no voting rights. However, as long as any shares of Preferred Stock are outstanding, the Corporation shall not, without the affirmative vote of the Holders of a majority of the then outstanding shares of the Preferred Stock, (a) alter or change adversely the powers, preferences or rights given to the Preferred Stock or alter or amend this Certificate of Designation, (b) authorize or create any class of stock ranking as to dividends, redemption or distribution of assets upon a Liquidation (as defined in Section 5) senior to, or otherwise pari passu with, the Preferred Stock (other than as contemplated pursuant to the Other Purchase Agreement), (c) amend its certificate of incorporation or other charter documents in any manner that adversely affects any rights of the Holders, (d) increase the number of authorized shares of Preferred Stock, or (e) enter into any agreement with respect to any of the foregoing.

Section 5.    Liquidation. Upon any liquidation, dissolution or winding-up of the Corporation, whether voluntary or involuntary (a “Liquidation”), the Holders shall be entitled to receive out of the assets, whether capital or surplus, of the Corporation an amount equal to the Stated Value, plus any accrued and unpaid Dividends thereon, if any, and any other fees or liquidated damages then due and owing thereon under this Certificate of Designation, for each share of Preferred Stock before any distribution or payment shall be made to the holders of any Junior Securities, and if the assets of the Corporation shall be insufficient to pay in full such amounts, then the entire assets to be distributed to the Holders shall be ratably distributed among the Holders in accordance with the respective amounts that would be payable on such shares if all amounts payable thereon were paid in full. The Corporation shall mail written notice of any such Liquidation, not less than 45 days prior to the payment date stated therein, to each Holder.

Section 6.    Conversion.

a) Conversions at Option of Holder. Each share of Preferred Stock shall be convertible, at any time and from time to time from and after the Stockholder Approval Date at the option of the Holder thereof, into that number of shares of Common Stock (subject to the limitations set forth in Section 6(d) and Section 6(e)) determined by dividing the Stated Value of such share of Preferred Stock by the Conversion Price. Holders shall effect conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A (a “Notice of Conversion”). Each Notice of Conversion shall specify the number of shares of Preferred Stock to be converted, the number of shares of Preferred Stock owned prior to the conversion at issue, the number of shares of Preferred Stock owned subsequent to the conversion at issue and the date on which such conversion is to be effected, which date may not be prior to the date the applicable Holder delivers by .pdf via email such Notice of Conversion to the Corporation (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion to the Corporation is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. The calculations and entries set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error. To effect conversions of shares of Preferred Stock, a Holder shall not be required to surrender the certificate(s) representing the shares of Preferred Stock to the Corporation unless all of the shares of Preferred Stock represented thereby are so converted, in which case such Holder shall deliver the certificate representing such shares of Preferred Stock promptly following the Conversion Date at issue. Shares of Preferred Stock converted into Common Stock or redeemed in accordance with the terms hereof shall be canceled and shall not be reissued.
b) Conversion Price. The conversion price for the Preferred Stock shall equal $[ ]^1^, subject to adjustment as provided herein and for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions following the date hereof; provided that [Series D: following the Effective Date, the Conversion Price shall thereafter be reduced to equal the lower of (i) the Conversion Price on the Trading Day immediately prior to the Effective Date, and (ii) the Applicable Price on the Effective Date] [Series C-2: if the Effective Date shall not have occurred prior to the Second Closing Date, following the Effective Date, the Conversion Price shall thereafter be reduced to equal the lower of (i) the Conversion Price on the Trading Day immediately prior to the Effective Date, and (ii) 80% of the Applicable Price on the Effective Date]; provided that, the Conversion Price shall not be less than $0.35 (the “Floor Price,” and such requirement, the “Floor Price Condition”); provided further that, the Corporation may waive, in its sole discretion, the Floor Price Condition.
c) Mechanics of Conversion.
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i. Delivery of Conversion Shares Upon Conversion. Not later than the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) after each Conversion Date (the “Share Delivery Date”), the Corporation shall deliver, or cause to be delivered, to the converting Holder by book-entry or physical delivery of a certificate, registered in the Corporation’s share register in the name of the Holder or its designee, the number of Conversion Shares to which the Holder is entitled pursuant to such conversion, which, on or after the earlier of (i) such date on which the Conversion Shares are eligible for resale by the Holder without volume or manner-of-sale limitations pursuant to Rule 144 or (ii) the Effective Date, shall be free of restrictive legends and trading restrictions (other than those which may then be required by the Purchase Agreement) (such date, the “Legend Removal Date”). On or after the Legend Removal Date, the Corporation shall deliver the Conversion Shares required to be delivered by the Corporation under this Section 6 electronically through the Depository Trust Company or another established clearing corporation performing similar functions. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Corporation’s primary Trading Market with respect to the Common Stock as in effect on the date of delivery of the Notice of Conversion.

^1^ With respect to the Series D Preferred Shares: to equal the Applicable Price on the Closing Date of the Series D Preferred Shares.

With respect to the Series C-2 Preferred Shares: to equal the lower of: (A) eighty percent (80%) of (i) the Applicable Price on the Second Closing Date, (ii) the Applicable Price on the Stockholder Approval Date, and (iii) the Applicable Price on the Effective Date (if such date occurred prior to the Second Closing Date) and (B) lowest conversion price of outstanding shares of Preferred Stock.

With respect to the Series C-3 Preferred Shares: to equal the lower of: (A) eighty percent (80%) of (i) the Applicable Price on the Third Closing Date, (ii) the Applicable Price on the Stockholder Approval Date, and (iii) the Applicable Price on the Effective Date; and (B) the lowest conversion price of outstanding shares of Preferred Stock.

With respect to the Series C-4 Preferred Shares: to equal the lower of: (A) eighty percent (80%) of (i) the Applicable Price on the initial Additional Closing Date, (ii) the Applicable Price on the Stockholder Approval Date, and (iii) the Applicable Price on the Effective Date; and (B) the lowest price per share at which any shares of Preferred Stock were issued in any prior Closing.

ii. Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed by the applicable Holder by the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Corporation at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Corporation shall promptly return to the Holder any original Preferred Stock certificate delivered to the Corporation and the Holder shall promptly return to the Corporation the Conversion Shares issued to such Holder pursuant to the rescinded Notice of Conversion.

iii. Obligation Absolute; Partial Liquidated Damages. The Corporation’s obligations to issue and deliver the Conversion Shares upon conversion of Preferred Stock in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by a Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by such Holder or any other Person of any obligation to the Corporation or any violation or alleged violation of law by such Holder or any other person, and irrespective of any other circumstance which might otherwise limit such obligation of the Corporation to such Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Corporation of any such action that the Corporation may have against such Holder. In the event a Holder shall elect to convert any or all of the Stated Value of its Preferred Stock, the Corporation may not refuse conversion based on any claim that such Holder or any one associated or affiliated with such Holder has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Holder, restraining and/or enjoining conversion of all or part of the Preferred Stock of such Holder shall have been sought and obtained, and the Corporation posts a surety bond for the benefit of such Holder in the amount of 120% of the Stated Value of Preferred Stock which is subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to such Holder to the extent it obtains judgment. In the absence of such injunction, the Corporation shall issue Conversion Shares and, if applicable, cash, upon a properly noticed conversion. If the Corporation fails to deliver to a Holder such Conversion Shares pursuant to Section 6(c)(i) by the Share Delivery Date applicable to such conversion, the Corporation shall pay to such Holder, in cash, as liquidated damages and not as a penalty, for each $5,000 of Stated Value of Preferred Stock being converted, $50 per Trading Day (increasing to $100 per Trading Day on the third (3^rd^) Trading Day and increasing to $200 per Trading Day on the sixth Trading Day after the Share Delivery Date) for each Trading Day after the Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion. Nothing herein shall limit a Holder’s right to pursue actual damages for the Corporation’s failure to deliver Conversion Shares within the period specified herein and such Holder shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit a Holder from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

iv. Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder, if the Corporation fails for any reason to deliver to a Holder the applicable Conversion Shares by the Share Delivery Date pursuant to Section 6(c)(i), and if after such Share Delivery Date such Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by such Holder of the Conversion Shares which such Holder was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Corporation shall (A) pay in cash to such Holder (in addition to any other remedies available to or elected by such Holder) the amount, if any, by which (x) such Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that such Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of such Holder, either reissue (if surrendered) the shares of Preferred Stock equal to the number of shares of Preferred Stock submitted for conversion (in which case, such conversion shall be deemed rescinded) or deliver to such Holder the number of shares of Common Stock that would have been issued if the Corporation had timely complied with its delivery requirements under Section 6(c)(i). For example, if a Holder purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of shares of Preferred Stock with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Corporation shall be required to pay such Holder $1,000. The Holder shall provide the Corporation written notice indicating the amounts payable to such Holder in respect of the Buy-In and, upon request of the Corporation, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Corporation’s failure to timely deliver the Conversion Shares upon conversion of the shares of Preferred Stock as required pursuant to the terms hereof.

v. Reservation of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Preferred Stock as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder (and the other holders of the Preferred Stock), not less than such aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions of Section 7) upon the conversion of the then outstanding shares of Preferred Stock. The Corporation covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if the Registration Statement is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement.

vi. Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of the Preferred Stock. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Corporation shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share. Notwithstanding anything to the contrary contained herein, but consistent with the provisions of this subsection with respect to fractional Conversion Shares, nothing shall prevent any Holder from converting fractional shares of Preferred Stock.

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

d)    Beneficial Ownership Limitation. The Corporation shall not effect any conversion of the Preferred Stock, and a Holder shall not have the right to convert any portion of the Preferred Stock, to the extent that, after giving effect to the conversion set forth on the applicable Notice of Conversion, such Holder (together with such Holder’s Affiliates, and any Persons acting as a group together with such Holder or any of such Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by such Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of the Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which are issuable upon (i) conversion of the remaining, unconverted Stated Value of Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, the Preferred Stock) beneficially owned by such Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 6(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 6(d) applies, the determination of whether the Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of how many shares of Preferred Stock are convertible shall be in the sole discretion of such Holder, and the submission of a Notice of Conversion shall be deemed to be such Holder’s determination of whether the shares of Preferred Stock may be converted (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and how many shares of the Preferred Stock are convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, each Holder will be deemed to represent to the Corporation each time it delivers a Notice of Conversion that such Notice of Conversion has not violated the restrictions set forth in this paragraph and the Corporation shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 6(d), in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as stated in the most recent of the following: (i) the Corporation’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Corporation or (iii) a more recent written notice by the Corporation or the Transfer Agent setting forth the number of shares of Common Stock outstanding.

Upon the written or oral request of a Holder, the Corporation shall within one Trading Day confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Preferred Stock, by such Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be [4.99%][9.99%] of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of Preferred Stock held by the applicable Holder. A Holder, upon notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 6(d) applicable to its Preferred Stock 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 the shares of Preferred Stock held by the Holder and the provisions of this Section 6(d) shall continue to apply. Any such increase in the Beneficial Ownership Limitation will not be effective until the 61^st^ day after such notice is delivered to the Corporation and shall only apply to such Holder and no other Holder. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 6(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of Preferred Stock.

e)    Issuance Limitations. Notwithstanding anything herein to the contrary, if the Corporation has not obtained Stockholder Approval, then the Corporation may not issue, upon conversion of the Preferred Stock, a number of shares of Common Stock which, when aggregated with any shares of Common Stock currently owned by a Holder, issued on or after the Original Issue Date and prior to such Conversion Date in connection with any conversion of Preferred Stock issued pursuant to the Purchase Agreement, would exceed the number of shares of Common Stock which the Corporation may issue upon conversion or otherwise pursuant to the terms of this Certificate of Designation without breaching the Corporation’s obligations under the rules or regulations of the Trading Market (such number of shares, the “Issuable Maximum”). Each Holder shall be entitled to a portion of the Issuable Maximum equal to the quotient obtained by dividing (x) the original Stated Value of such Holder’s Preferred Stock by (y) the aggregate Stated Value of all Preferred Stock issued on the Original Issue Date to all Holders. Such portion shall be adjusted upward ratably in the event a Holder no longer holds any Preferred Stock and the amount of shares issued to such Holder pursuant to such Holder’s Preferred Stock was less than such Holder’s pro-rata share of the Issuable Maximum.

f)      [Series C-4: Right of Alternate Conversion.

i. General. Subject to Sections 6(d), the Holder may, at the Holder’s option, convert (each, an “Alternate Conversion”, and the date of such Alternate Conversion, each, an “Alternate Conversion Date”) all, or any part of, the Preferred Stock (such portion of the Conversion Amount subject to such Alternate Conversion, each, an “Alternate Conversion Amount”) into Common Stock at a conversion price equal to 80% of the Applicable Price immediately prior to the applicable Alternate Conversion Date (the “Alternate Conversion Price”).
ii. Mechanics of Alternate Conversion. On any Alternate Conversion Date, the Holder may voluntarily convert any Alternate Conversion Amount (with “Alternate Conversion Price” replacing “Conversion Price” for all purposes hereunder with respect to such Alternate Conversion) by designating in the Conversion Notice delivered pursuant to this Section 6(f) that the Holder is electing to use the Alternate Conversion Price for such conversion. Notwithstanding anything to the contrary in this Section 6(f), but subject to Sections 6(d), until the Corporation delivers shares of Common Stock representing the applicable Alternate Conversion Amount to the Holder, such Alternate Conversion Amount may be converted by the Holder into Common Stock pursuant to Section 6(a) without regard to this Section 6(f).]
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Section 7.     Certain Adjustments.

a) Stock Dividends and Stock Splits. If the Corporation, at any time while any shares of Preferred Stock are outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any other Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Corporation upon conversion of, or payment of a dividend on, any shares of Preferred Stock), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Corporation, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Corporation) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section 7(a) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
b) Voluntary Adjustment by the Corporation. Subject to the rules and regulations of the Corporation’s principal Trading Market, the Corporation may at any time any shares of Preferred Stock remain outstanding, with the prior written consent of the Required Holders, reduce the then current Conversion Price to any amount and for any period of time deemed appropriate by the Board of Directors.
c) Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 7(a) above, at any time after the date hereof the Corporation grants, issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of such Holder’s Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation or the Issuable Maximum, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation or the Issuable Maximum).
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d) Pro Rata Distributions. During such time as any shares of Preferred Stock are outstanding, if the Corporation declares or makes any dividend or other distribution of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after the Original Issue Date, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete conversion of all of the shares of Preferred Stock (without regard to any limitations on conversion hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation or the Issuable Maximum, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation or the Issuable Maximum).
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e) Fundamental Transaction. If, at any time while any shares of Preferred Stock are outstanding, (i) the Corporation, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Corporation with or into another Person, (ii) the Corporation (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Corporation or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of more than 50% of the outstanding Common Stock, (iv) the Corporation, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Corporation, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of any shares of Preferred Stock, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 6(d) and Section 6(e) on the conversion of the Preferred Stock), the number of shares of Common Stock of the successor or acquiring corporation or of the Corporation, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which the shares of Preferred Stock are convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 6(d) and Section 6(e) on the conversion of the Preferred Stock). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Corporation shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of Preferred Stock following such Fundamental Transaction. To the extent necessary to effectuate the foregoing provisions, any successor to the Corporation or surviving entity in such Fundamental Transaction shall file a new Certificate of Designation with the same terms and conditions and issue to the Holders new preferred stock consistent with the foregoing provisions and evidencing the Holders’ right to convert such preferred stock into Alternate Consideration. The Corporation shall cause any successor entity in a Fundamental Transaction in which the Corporation is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents (as defined in the Purchase Agreement) in accordance with the provisions of this Section 7(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for the shares of Preferred Stock held by such Holder a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to the shares of Preferred Stock which are convertible for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon conversion of the shares of Preferred Stock (without regard to any limitations on the conversion of the shares of Preferred Stock) prior to such Fundamental Transaction, and with a conversion price which applies the conversion price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such conversion price being for the purpose of protecting the economic value of the shares of Preferred Stock immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Certificate of Designation and the other Transaction Documents referring to the “Corporation” shall refer instead to the Successor Entity), and may exercise every right and power of the Corporation and shall assume all of the obligations of the Corporation under this Certificate of Designation and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Corporation herein.
f) Calculations. All calculations under this Section 7 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 7, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Corporation) issued and outstanding.
g) Notice to the Holders.
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i. Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 7, the Corporation shall promptly deliver to each Holder by email a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
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ii. Notice to Allow Conversion by Holder. If (A) the Corporation shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Corporation shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Corporation shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Corporation shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Corporation is a party, any sale or transfer of all or substantially all of the assets of the Corporation (and all of its Subsidiaries, taken as a whole), or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Corporation shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Corporation, then, in each case, the Corporation shall cause to be filed at each office or agency maintained for the purpose of conversion of the shares of Preferred Stock, and shall cause to be delivered by email to each Holder at its last email address as it shall appear upon the stock books of the Corporation, at least twenty (20) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange, provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information regarding the Corporation or any of the Subsidiaries, the Corporation shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to convert the Stated Value of the shares of Preferred Stock (or any part hereof) during the 20-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
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Section 8.      Covenants. For so long as thirty-three and one-third percent (33.33%) of any issued shares of Preferred Stock are outstanding, without the prior written consent of the Required Holders:

a) other than Permitted Indebtedness, the Corporation may not enter into, create, incur, assume, guarantee or suffer to exist any indebtedness for borrowed money of any kind, including but not limited to, a guarantee, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom;
b) other than Permitted Liens, the Corporation may not enter into, create, incur, assume or suffer to exist any Liens of any kind, on or with respect to any of its property or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom;
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c) the Corporation may not amend its charter documents, including, without limitation, its certificate of incorporation and bylaws, in any manner that materially and adversely affects any rights of the Holder, except for (i) any amendment to the Corporation’s bylaws to lower its quorum requirement and (ii) any amendment to the Corporation’s charter in connection with filing a certificate of designation for the shares of preferred stock, or any amendment thereto, pursuant to the Other Purchase Agreement;
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d) the Corporation may not pay cash dividends or distributions on any of the capital stock of the Corporation;
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e) the Corporation may not enter into any transaction with any Affiliate of the Corporation which would be required to be disclosed in any public filing with the Commission, unless such transaction is made on an arm’s-length basis and expressly approved by a majority of the disinterested directors of the Corporation (even if less than a quorum otherwise required for board approval);
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f) The Corporation shall not, and the Corporation shall cause each of its Subsidiaries to not, directly or indirectly, sell, lease, license, assign, transfer, spin-off, split-off, close, convey or otherwise dispose of any assets or rights of the Corporation or any Subsidiary owned or hereafter acquired whether in a single transaction or a series of related transactions, other than (i) sales, leases, licenses, assignments, transfers, conveyances and other dispositions of such assets or rights by the Corporation and its Subsidiaries in the ordinary course of business consistent with its past practice, or (ii) sales of inventory and product in the ordinary course of business;
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g) The Corporation shall not, and the Corporation shall cause each of its Subsidiaries to not, directly or indirectly, engage in any material line of business substantially different from those lines of business conducted by or publicly contemplated to be conducted by the Corporation and/or its Subsidiaries on the date of the Purchase Agreement or any business reasonably related or incidental thereto. The Corporation shall not, and the Corporation shall cause each of its Subsidiaries to not, directly or indirectly, modify its or their corporate structure or purpose in any material respect;
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h) other than as contemplated pursuant to the Other Purchase Agreement, the Corporation shall not authorize or issue any additional or other shares of capital stock that are of senior rank to or of pari passu to the shares of Preferred Stock in respect of the preferences as to dividends, distributions and payments upon the liquidation, dissolution and winding up of the Corporation.
i) The Corporation shall not, directly or indirectly, without the prior written consent of the Required Holders, (i) issue any shares of Preferred Stock (other than as contemplated by the Securities Purchase Agreement and this Certificate of Designation), (ii) issue any other securities that would cause a breach or default under this Certificate of Designation, or (iii) other than the issuance of stock options under any Approved Stock Plan or the declaration of dividends, create, or authorize the creation of, any additional class or series of capital stock of the Corporation (or any security convertible into or exercisable for any class or series of capital stock of the Corporation) or issue or sell, or obligate itself to issue or sell, any securities of the Corporation (or any security convertible into or exercisable for any class or series of capital stock of the Corporation), including any class or series of capital stock of the Corporation that ranks superior to the Series [C] [D] Preferred Stock in rights, preferences, or privileges (including with respect to dividends, liquidation, redemption, or voting), below the Conversion Price;
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j) The Corporation shall not acquire, in any transaction or series of related transactions, the stock or any material assets of another Person, or enter into any joint venture with any other Person, for aggregate consideration (including the direct or indirect assumption of liabilities) valued at more than 10% of the total consolidated assets of the Corporation as of the most recent quarter-end prior to such acquisition as reflected on the consolidated balance sheet of the Corporation prepared in accordance with GAAP;
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k) The Corporation shall not, directly or indirectly, consummate, or agree to enter into any merger, consolidation, acquisition, sale of material assets or other strategic transaction;
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l) enter into any agreement with respect to any of the foregoing clauses (a) through (k);
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m) The Corporation shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, its existence, rights and privileges, and become or remain, and cause each of its Subsidiaries to become or remain, duly qualified and in good standing in each jurisdiction in which the character of the properties owned or leased by it or in which the transaction of its business makes such qualification necessary; provided, however, that the Corporation shall have the right to merge or combine wholly-owned Subsidiaries hereunder, or eliminate or dissolve foreign Subsidiaries, in each case where such restructuring does not have a material impact on the Corporation’s assets or ability to comply with the provisions hereof;
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n) The Corporation shall maintain and preserve, and cause each of its Subsidiaries to maintain and preserve, all of its properties which are necessary or useful in the proper conduct of its business in good working order and condition, ordinary wear and tear excepted, and comply, and cause each of its Subsidiaries to comply, at all times with the provisions of all leases to which it is a party as lessee or under which it occupies property, so as to prevent any loss or forfeiture thereof or thereunder;
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o) The Corporation will, and will cause each of its Subsidiaries to, take all action necessary or advisable to maintain all of the Intellectual Property Rights of the Corporation and/or any of its Subsidiaries that are necessary or material to the conduct of its business in full force and effect;
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p) The Corporation shall use reasonable best efforts to maintain, and cause each of its Subsidiaries to maintain, insurance with responsible and reputable insurance companies or associations (including, without limitation, comprehensive general liability, hazard, rent and business interruption insurance) with respect to its properties (including all real properties leased or owned by it) and business, in such amounts and covering such risks as are generally consistent with the coverage held by the Corporation on the Original Issue Date;
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q) The Corporation shall not effect, or enter into any agreement to effect, a Change of Control;
r) To the extent that it may lawfully do so, the Corporation (A) agrees that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law (wherever or whenever enacted or in force) that may affect the covenants or the performance of this Certificate of Designation; and (B) expressly waives all benefits or advantages of any such law and agrees that it will not, by resort to any such law, hinder, delay or impede the execution of any power granted to the Holders by this Certificate of Designation, but will suffer and permit the execution of every such power as though no such law has been enacted; or
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s) The Corporation and its Subsidiaries shall pay when due all taxes, fees or other charges of any nature whatsoever (together with any related interest or penalties) now or hereafter imposed or assessed against the Corporation and its Subsidiaries or their respective assets or upon their ownership, possession, use, operation or disposition thereof or upon their rents, receipts or earnings arising therefrom (except where the failure to pay would not, individually or in the aggregate, have a material effect on the Corporation or any of its Subsidiaries). The Corporation and its Subsidiaries shall file on or before the due date therefor all personal property tax returns (except where the failure to file would not, individually or in the aggregate, have a material effect on the Corporation or any of its Subsidiaries). Notwithstanding the foregoing, the Corporation and its Subsidiaries may contest, in good faith and by appropriate proceedings, taxes for which they maintain adequate reserves therefor in accordance with GAAP.
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Section 9. Miscellaneous.

a) Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by e-mail attachment, or sent by a nationally recognized overnight courier service, addressed to the Corporation, at the address set forth above Attention: [ ], e-mail address [ ], or such other e-mail address or address as the Corporation may specify for such purposes by notice to the Holders delivered in accordance with this Section 9. Any and all notices or other communications or deliveries to be provided by the Corporation hereunder shall be in writing and delivered personally, by e-mail attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Corporation, or if no such e-mail address or address appears on the books of the Corporation, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via e-mail attachment at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via e-mail attachment at the e-mail address set forth in this Section on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given.
b) Absolute Obligation. Except as expressly provided herein, no provision of this Certificate of Designation shall alter or impair the obligation of the Corporation, which is absolute and unconditional, to pay liquidated damages, accrued Dividends and accrued interest, as applicable, on the shares of Preferred Stock at the time, place, and rate, and in the coin or currency, herein prescribed.
c) Lost or Mutilated Preferred Stock Certificate. If a Holder’s Preferred Stock certificate shall be mutilated, lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such certificate, and of the ownership hereof reasonably satisfactory to the Corporation.
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d) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware without regard to the principles of conflict of laws thereof. All legal proceedings concerning the interpretation, enforcement and defense of the transactions contemplated by any of the Transaction Documents (whether brought against a party hereto or its respective Affiliates, directors, officers, stockholders, employees or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New York Courts”). The Corporation and each Holder hereby irrevocably submits to the exclusive jurisdiction of the New York Courts 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 such New York Courts, or such New York Courts are an improper or inconvenient venue for such proceeding. The Corporation and each Holder hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Certificate of Designation and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by applicable law. The Corporation and each Holder hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If the Corporation or any Holder shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in the investigation, preparation and prosecution of such action or proceeding.
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e) Waiver. Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist upon strict adherence to that term or any other term of this Certificate of Designation on any other occasion. Any waiver by the Corporation or a Holder must be in writing.
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f) Severability. If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under applicable law.
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h) Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day.
i) Headings. The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed to limit or affect any of the provisions hereof.
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j) Status of Converted or Redeemed Preferred Stock. Shares of Preferred Stock may only be issued pursuant to the Purchase Agreement. If any shares of Preferred Stock shall be converted, redeemed or reacquired by the Corporation, such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series [C] [D] Convertible Preferred Stock.
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k) Amendments. This Certificate of Designation or any provision thereof may be amended by obtaining the written consent of the majority of the Holders of the Preferred Stock issued and outstanding on such date.
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*********************

RESOLVED, FURTHER, that the Chairman, the president or any vice-president, and the secretary or any assistant secretary, of the Corporation be and they hereby are authorized and directed to prepare and file this Certificate of Designation of Preferences, Rights and Limitations in accordance with the foregoing resolution and the provisions of Delaware law.

IN WITNESS WHEREOF, the undersigned has executed this Certificate this [  ] day of [  ], 2026.

Name: Philip Anderson
Title:   Chief Financial Officer

ANNEX A

NOTICE OF CONVERSION

(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER TO CONVERT SHARES OF PREFERRED STOCK)

The undersigned hereby elects to convert the number of shares of Series [C] [D] Convertible Preferred Stock indicated below into shares of common stock, par value $0.0001 per share (the “Common Stock”), of Catheter Precision, Inc., a Delaware corporation (the “Corporation”), according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as may be required by the Corporation in accordance with the Purchase Agreement. No fee will be charged to the Holders for any conversion, except for any such transfer taxes.

Conversion calculations:

Date to Effect Conversion:

Number of shares of Preferred Stock owned prior to Conversion:

Number of shares of Preferred Stock to be Converted:

Stated Value of shares of Preferred Stock to be Converted:

Number of shares of Common Stock to be Issued:

Applicable Conversion Price:

Number of shares of Preferred Stock subsequent to Conversion:

Address for Delivery:

or

DWAC Instructions:

Broker no:

Account no:

[HOLDER]
By:
Name:
Title:

ex_929496.htm

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

This SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of March 9, 2026, is by and among Catheter Precision, Inc., a Delaware corporation (the “Company”), and each of the investors listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively, the “Buyers”).

RECITALS

A.         The Company has authorized four series of convertible preferred stock of the Company, designated as (i) Series C-1 Convertible Preferred Stock, stated value $1,000 per share and par value $0.0001 per share (the “Series C-1 Preferred Stock”), the terms of which are set forth in the certificate of designations for such series of preferred stock (the “Series C-1 Certificate of Designations”), (ii) Series C-2 Convertible Preferred Stock, stated value $1,000 per share and par value $0.0001 per share (the “Series C-2 Preferred Stock”), the terms of which are set forth in the certificate of designations for such series of preferred stock (the “Series C-2 Certificate of Designations”), (iii) Series C-3 Convertible Preferred Stock, stated value $1,000 per share and par value $0.0001 per share (the “Series C-3 Preferred Stock”), the terms of which are set forth in the certificate of designations for such series of preferred stock (the “Series C-3 Certificate of Designations”) and (iv) Series C-4 Convertible Preferred Stock, stated value $1,000 per share and par value $0.0001 per share (the “Series C-4 Preferred Stock” and together with the Series C-1 Preferred Stock, Series C-2 Preferred Stock and Series C-3 Preferred Stock, the “Series C Preferred Stock”), the terms of which are set forth in the certificate of designations for such series of preferred stock (the “Series C-4 Certificate of Designations” and together with the Series C-1 Certificate of Designations, Series C-2 Certificate of Designations and Series C-3 Certificate of Designations, the “Certificates of Designations”). which such Certificates of Designations are in the form attached hereto as Exhibit A. The Series C Preferred Stock shall be convertible into shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), in accordance with the terms of applicable Certificate of Designations. The shares of Series C Preferred Stock are herein collectively referred to as the “Preferred Shares” and the shares of Common Stock issuable pursuant to the conversion of the Preferred Shares, including, without limitation, upon conversion or otherwise, are herein referred to as the “Conversion Shares.”

B.         Each Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, pursuant to the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”) and Rule 506(b) of Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act, in each Closing, such aggregate number of Preferred Shares as set forth in columns (3), (5) and (7) on the Schedule of Buyers. The Preferred Shares and the Conversion Shares are collectively referred to herein as the “Securities.”

C.         On the date hereof, the parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit B (the “Registration Rights Agreement”), pursuant to which the Company has agreed to provide certain registration rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement), under the 1933 Act and the rules and regulations promulgated thereunder, and applicable state securities laws.

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AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:

1. **** PURCHASE AND SALE OF THE PREFERRED SHARES.

(a)    Purchase of the Preferred Shares. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the applicable closing date, such aggregate number of Preferred Shares as is set forth opposite such Buyer’s name on the Schedule of Buyers. For purposes of this Agreement, “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day. For purposes of this Agreement, “Closing Date” means each of the First Closing Date, the Second Closing Date, the Third Closing Date and any Additional Closing Date (each as defined herein). “Closing” means each of the First Closing, the Second Closing, the Third Closing and any Additional Closing (each as defined herein).

(b)    Tranche 1; First Closing. The closing (the “First Closing”) of the first tranche (“Tranche 1”) of the purchase of such number of shares of Series C-1 Preferred Stock as set forth on column (3) on the Schedule of Buyers pursuant to the terms of Section 7(b) of this Agreement, shall occur remotely by the electronic transfer of Closing documentation. The date and time of the First Closing (the “First Closing Date”) shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the First Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). The aggregate purchase price for the shares of Series C-1 Preferred Stock to be purchased by each Buyer in the First Closing shall be the amount set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers, respectively.

(c)    Tranche 2; Second Closing. The closing (the “Second Closing”) of the second tranche (“Tranche 2”) of the purchase of such number of shares of Series C-2 Preferred Stock as set forth in column (5) on the Schedule of Buyers pursuant to the terms of Section 7(c) of this Agreement, shall occur remotely by the electronic transfer of Closing documentation. The date and time of the Second Closing (the “Second Closing Date”) shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Second Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). The aggregate purchase price for the shares of Series C-2 Preferred Stock to be purchased by each Buyer in the Second Closing shall be the amount set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers.

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(d)    Tranche 3; Third Closing. The closing (the “Third Closing”) of the third tranche (“Tranche 3”) of the purchase of such number of shares of Series C-3 Preferred Stock as set forth in column (7) on the Schedule of Buyers pursuant to the terms of Section 7(d) of this Agreement, shall occur remotely by the electronic transfer of Closing documentation. The date and time of the Third Closing (the “Third Closing Date”) shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Third Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). The aggregate purchase price for the shares of Series C-3 Preferred Stock to be purchased by each Buyer in the Third Closing shall be the amount set forth opposite such Buyer’s name in column (8) on the Schedule of Buyers.

(e)    Additional Investment Right; Additional Closings. For a period of twelve (12) months following the later of (i) the Stockholder Approval Date and (ii) the Effective Date (each as defined herein), each Buyer may elect to purchase, from time to time, of up to an additional $39,233,333 of stated value of Series C-4 Preferred Stock (representing 39,233.33 shares of Series C-4 Preferred Stock) on a pro rata basis based on each Buyer’s subscription amount (each, a “Pro-Rata Portion”, provided however, if any Buyer elects not to exercise their Additional Investment Right (as defined below), such Pro-Rata Portion may be purchased on a pro rata basis by each of the other Buyers at their sole discretion. Such additional shares of Series C-4 Preferred Stock shall have identical terms to the Preferred Shares issued in each of Tranche 1, Tranche 2 and Tranche 3, provided that the initial conversion price of such additional Preferred Shares shall be as provided in the Series C-4 Certificate of Designations (the “Additional Investment Right”). Exercises of any Additional Investment Right by each Buyer shall be for minimum gross proceeds of $500,000 (each Closing of an exercise of an Additional Investment Right, an “Additional Closing” and each such closing date, an “Additional Closing Date”). The date and time of any Additional Closing shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Additional Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). Any exercise of the Additional Investment Right shall be at the sole discretion and option of the Buyers.

(f)    Form of Payment. On each applicable Closing Date, (i) each Buyer shall pay its respective purchase price (less, in the case of the lead Buyer, the amounts withheld pursuant to Section 4(g)) to the Company for the Preferred Shares, to be issued and sold to such Buyer at each applicable Closing, by wire transfer of immediately available funds in accordance with the Company’s written wire instructions) and (ii) the Company shall deliver to each Buyer in connection with each Closing, such respective aggregate number of Preferred Shares pursuant to Section 7 of this Agreement and, as applicable, as set forth on the Schedule of Buyers for the applicable Tranche, in each case, duly executed on behalf of the Company and registered in the name of such Buyer or its designee.

2. **** BUYER’S REPRESENTATIONS AND WARRANTIES.

Each Buyer, severally and not jointly, represents and warrants to the Company with respect to only itself that, as of the date hereof and as of each Closing Date:

(a)    Organization; Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents (as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder.

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(b)    No Public Sale or Distribution. Such Buyer (i) is acquiring the Preferred Shares and (ii) upon conversion of its Preferred Shares will acquire the Conversion Shares issuable upon conversion thereof, for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or exempted under the 1933 Act; provided, however, by making the representations herein, such Buyer does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption from registration under the 1933 Act. Such Buyer does not presently have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Securities in violation of applicable securities laws. For purposes of this Agreement, “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any Governmental Entity (as defined below) or any department or agency thereof.

(c)    Accredited Investor Status; Experience. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D. Such Buyer, 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 prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Buyer is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

(d)    Reliance on Exemptions. Such Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such Buyer to acquire the Securities.

(e)    Information. Such Buyer acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Documents (as defined below). Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right to rely on the Company’s representations and warranties contained herein. Such Buyer understands that its investment in the Securities involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.

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(f)    No Governmental Review. Such Buyer understands that no United States federal or state agency or any other government or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.

(g)    Transfer or Resale. Such Buyer understands that except as provided in the Registration Rights Agreement and Section 4(h) hereof: (i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to the Company (if requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. 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 and such pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document (as defined in Section 3(b)), including, without limitation, this Section 2(g).

(h)    Validity; Enforcement. This Agreement and the Registration Rights Agreement, as applicable, have been duly and validly authorized, executed and delivered on behalf of such Buyer and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.

(i)    No Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the Registration Rights Agreement and the consummation by such Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of such Buyer, or (ii) 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 such Buyer is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Buyer to perform its obligations hereunder.

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(j)    No Reliance on Placement Agent. Such Buyer acknowledges and agrees that neither the Placement Agent (as defined below) nor any affiliate of the Placement Agent has provided such Buyer with any information or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and any affiliate may have acquired non-public information with respect to the Company which such Buyer agrees need not be provided to it. In connection with the issuance of the Securities to such Buyer, neither the Placement Agent nor any of its affiliates has acted as a financial advisor or fiduciary to such Buyer.

(k)    Residency. Such Buyer is a resident of that jurisdiction specified below its address on the Schedule of Buyers.

(l)    General Solicitation. Buyer represents that (i) Buyer was contacted regarding the sale of the Securities by the Placement Agent or the Company (or authorized representative thereof) and the Buyer had a prior pre-existing relationship with the Company under the U.S. securities laws and interpretations, (ii) to the knowledge of such Buyer, no Securities were offered or sold to it by means of any form of general solicitation, and Buyer is not, to such Buyer’s knowledge, purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of such Buyer, any other general solicitation or general advertisement. The Buyer has not become interested in the offering of the Securities as a result of any registration statement of the Company filed with the SEC or any other securities agency or regulator.

(m)    Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Buyer has not, nor has any Person acting on behalf of or pursuant to any understanding with such Buyer, directly or indirectly executed any purchases or sales, including Short Sales (as defined below), of the securities of the Company during the period commencing as of the time that such Buyer first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Buyer that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Buyer’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Buyer’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such Buyer’s representatives, including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and affiliates, such Buyer has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). “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 locating and/or borrowing shares of Common Stock).

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3. **** REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

The Company represents and warrants to each of the Buyers that, as of the date hereof and as of the Closing Date:

(a)    Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their properties and to carry on their business as described in the SEC Documents. Each of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below). As used in this Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company and its Subsidiaries (as defined below), taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other agreements or instruments to be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations under any of the Transaction Documents (as defined below). “Subsidiaries” means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (II) controls or operates all or any part of the business, operations or administration of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”

(b)    Authorization; Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. Each Subsidiary has the requisite power and authority to enter into and perform its obligations under the Transaction Documents to which it is a party. The execution and delivery of this Agreement and the other Transaction Documents by the Company and its Subsidiaries, and the consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance by the Company of the Securities and the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Preferred Shares) have been duly authorized by the Company’s board of directors and, to the extent applicable, each of its Subsidiaries’ board of directors or other governing body, as applicable, and (other than the filing with the SEC of a Form D or of one or more Registration Statements (as defined in the Registration Rights Agreement) in accordance with the requirements of the Registration Rights Agreement, the filing of the applicable Certificate of Designations and any other filings as may be required by any state securities agencies) no further filing, consent or authorization is required by the Company, its Subsidiaries, their respective boards of directors or their stockholders or other governing body. This Agreement has been, and the other Transaction Documents to which it is a party will be prior to the Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law. Prior to the Closing, the Transaction Documents to which each Subsidiary is a party will be duly executed and delivered by each such Subsidiary, and shall constitute the legal, valid and binding obligations of each such Subsidiary, enforceable against each such Subsidiary 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 law. “Transaction Documents” means, collectively, this Agreement, the Certificate of Designations, the Registration Rights Agreement, the Irrevocable Transfer Agent Instructions (as defined below) and each of the other agreements and instruments entered into or delivered by the Company or any of its Subsidiaries in connection with the transactions contemplated hereby and thereby, as may be amended from time to time.

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(c)    Issuance of Securities. The issuance of the Preferred Shares is duly authorized and upon issuance in accordance with the terms of the Transaction Documents shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively “Liens”) with respect to the issuance thereof. As of each Closing, the Company shall have reserved from its duly authorized share capital not less than one hundred percent (100%) of the maximum number of Conversion Shares issuable upon conversion of the applicable Preferred Shares issued in such Closing, including such number of Preferred Shares as may be outstanding at such applicable Closing (assuming for purposes hereof that the Preferred Shares are convertible at the Floor Price (as defined in each applicable Certificate of Designations) then in effect and without taking into account any limitations on the conversion of the Preferred Shares set forth in the Certificate of Designations). Upon issuance or conversion in accordance with the Preferred Shares, the Conversion Shares, when issued, will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of shares of Common Stock (other than restrictions on transfer as described in Section 2(g)). The Company is eligible to use Form S-3 under the 1933 Act and it meets the transaction requirements as set forth in General Instruction I.B.6 of Form S-3. Subject to the accuracy of the representations and warranties of the Buyers in this Agreement, the offer and issuance by the Company of the Securities is exempt from registration under the 1933 Act.

(d)    No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and its Subsidiaries and the consummation by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Securities and the reservation for issuance of the Conversion Shares issuable upon conversion of the Preferred Shares) will not (i) result in a violation of the Certificate of Incorporation (as defined below), Bylaws (as defined below) or other organizational documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree and including all applicable foreign, federal and state securities laws, rules and regulations, and the rules and regulations of the NYSE American (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 each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.

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(e)    Consents. Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration with (other than the filing with the SEC of one or more Registration Statements in accordance with the requirements of the Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies, the notice and/or application(s) to the Principal Market for the issuance and sale of the Securities and the listing of the Conversion Shares for trading thereon in the time and manner required thereby), any Governmental Entity (as defined below) or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary is required to obtain prior to the Closing Date pursuant to the preceding sentence have been or will be obtained or effected on or prior to the Closing Date, and neither the Company nor any of its Subsidiaries are 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. “Governmental Entity” means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal, state, local, municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public international organization or any of the foregoing.

(f)    Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate” (as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than ten percent (10%) of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”)). The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such Buyer’s purchase of the Securities. The Company further represents to each Buyer that the Company’s and each Subsidiary’s decision to enter into the Transaction Documents to which it is a party has been based solely on the independent evaluation by the Company, each Subsidiary and their respective representatives.

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(g)    No General Solicitation; Placement Agent’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor) relating to or arising out of the transactions contemplated hereby, including, without limitation, the advisory fees payable to Dawson James Securities, Inc. (the “Placement Agent”) in connection with the sale of the Securities. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, attorney’s fees and out-of-pocket expenses) arising in connection with any such claim. The Company acknowledges that it has engaged the Placement Agent in connection with the sale of the Securities. Other than the Placement Agent, neither the Company nor any of its Subsidiaries has engaged any placement agent or other agent in connection with the offer or sale of the Securities.

(h)    No Integrated Offering. Except for issuances of the securities in connection with (i) that certain Securities Purchase Agreement, dated as of February 6, 2026, by and between the Company and the purchasers signatory thereto (the “Financing Purchase Agreement”), with respect to sale by the Company of shares of shares of Common Stock and convertible preferred stock, (ii) that certain Securities Purchase Agreement, dated as of February 6, 2026, by and between the Company and SEG Jets LLC (the “FLYTE Purchase Agreement” and, together with the Financing Purchase Agreement, the “Concurrent Purchase Agreements”), with respect to sale by the Company of shares of convertible preferred stock, none of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on 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 require registration of the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings or otherwise, or caused this offering of the Securities to require approval of stockholders of the Company for purposes of the 1933 Act or under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation system on which any of the securities of the Company are listed or designated for quotation. Except in connection with the Concurrent Purchase Agreements, none of the Company, its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would require registration of the issuance of any of the Securities under the 1933 Act (other than pursuant to the Registration Rights Agreement) or cause the offering of any of the Securities to be integrated with other offerings of securities of the Company.

(i)    Dilutive Effect. The Company understands and acknowledges that the number of Conversion Shares will increase in certain circumstances. The Company further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of this Agreement and the Certificate of Designations in accordance with this Agreement, as the case may be, and the Preferred Shares are absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company.

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(j)    Application of Takeover Protections; Rights Agreement. The Company and its board of directors (the “Board”) have taken all necessary action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill (including, without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover provision under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its incorporation or otherwise which is or could become applicable to any Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and any Buyer’s ownership of the Securities. The Company and its Board 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 shares of Common Stock or a change in control of the Company or any of its Subsidiaries.

(k)    SEC Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”). The Company has delivered or has made available to the Buyers or their respective representatives true, correct and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 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 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 U.S. generally accepted accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such 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). No other information provided by or on behalf of the Company to any of the Buyers which is not included in the SEC Documents (including, without limitation, information referred to in Section 2(e) of this Agreement or in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is not currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financial Statements to be in compliance with GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.

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(l)    Absence of Certain Changes. 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, 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. 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, individually and 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 Company Insolvent (as defined below). For purposes of this Section 3(l), “Company 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 (as defined below), (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.

(m)    No Undisclosed Events, Liabilities, Developments or Circumstances. To the Company’s knowledge, no event, liability, development or circumstance has occurred or exists that is reasonably likely to have a Material Adverse Effect.

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(n)    Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under its Certificate of Incorporation, organizational documents, any certificate of designations, preferences or rights of any other outstanding series of preferred stock of the Company or any of its Subsidiaries or Bylaws, their organizational charter, certificate of formation, memorandum of association, articles of association or certificate of incorporation or bylaws or other organizational documents, respectively. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations which could not, individually or in the aggregate, have a Material Adverse Effect. Without limiting the generality of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension of the Common Stock by the Principal Market in the foreseeable future. Since September 26, 2018, (i) the Common Stock has been listed or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been suspended by the SEC or the Principal Market and (iii) except as disclosed in the SEC Documents, the Company has received no communication, written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal Market. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries.

(o)    Foreign Corrupt Practices. Neither the Company, the Company’s subsidiary or any director, officer, agent, employee, nor any other person acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”) have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official capacity for any Governmental Entity to any political party or official thereof or to any candidate for political office (individually and collectively, a “Government Official”) or to any person under circumstances where such Company Affiliate knew or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to any Government Official, for the purpose of:

(i)    influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official to influence or affect any act or decision of any Governmental Entity, or

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(ii)    assisting the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.

(p)    Sarbanes-Oxley Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.

(q)    Transactions With Affiliates. Except as disclosed in the SEC Documents or for which no disclosure is required in the SEC Documents, no current or former employee, partner, director, officer or stockholder (direct or indirect) of the Company or its Subsidiaries, or any associate, or, to the knowledge of the Company, any affiliate of any thereof, or any relative with a relationship no more remote than first cousin of any of the foregoing, is presently, or has ever been, (i) a party to any transaction with the Company or its Subsidiaries (including any contract, agreement or other arrangement providing for the furnishing of services by, or rental of real or personal property from, or otherwise requiring payments to, any such director, officer or stockholder or such associate or affiliate or relative Subsidiaries (other than for ordinary course services as employees, officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct or indirect owner of an interest in any corporation, firm, association or business organization which is a competitor, supplier or customer of the Company or its Subsidiaries (except for a passive investment (direct or indirect) in less than five percent (5%) of the common equity of a company whose securities are traded on or quoted through an Eligible Market (as defined in the Certificate of Designations)), nor does any such Person receive income from any source other than the Company or its Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly accrue to the Company or its Subsidiaries. No employee, officer, stockholder or director of the Company or any of its Subsidiaries or member of his or her immediate family is indebted to the Company or its Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee benefits made generally available to all employees or executives (including stock option agreements outstanding under any stock option plan approved by the Board).

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(r)    Equity Capitalization. As of the date hereof, the authorized capital stock of the Company consists solely of (i) 500,000,000 shares of Common Stock, of which, 2,357,127 shares of Common Stock are issued and outstanding and 2,831,803 shares are reserved for issuance pursuant to outstanding Convertible Securities (as defined below) (other than the Preferred Shares); and (ii) 10,000,000 shares of Preferred Stock, of which no shares of Series A Convertible Preferred Stock are issued and outstanding, 2,229 shares of Series B Convertible Preferred Stock are issued and outstanding, no shares of Series X Convertible Preferred Stock are issued and outstanding, 1,616.33 shares of Series C-1 Preferred Stock are issued and outstanding, and 9,489.488 shares of Series J Convertible Preferred Stock are issued and outstanding. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries. 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 the SEC Documents, (i) none of the Company’s or any Subsidiary’s capital stock 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 capital stock 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 capital stock 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 capital stock of the Company or any of its Subsidiaries; (iii) 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) 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 1933 Act (except pursuant to the Registration Rights Agreement); (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 Securities; (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 have 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. The Company has furnished to the Buyers true, correct and complete copies of the Company’s Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Amended and Restated Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all Convertible Securities convertible into, or exercisable or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.

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(s)    Indebtedness and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) has any 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, other than as disclosed in the SEC Documents,(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) has any financing statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries, (iv) 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 (v) 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, “finance leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations, currently due and payable, 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 GAAP, consistently applied for the periods covered thereby, is classified as a finance 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 Lien 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; and (y) “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.

(t)    Litigation. There is no material action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’ officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, except as disclosed in the SEC Documents. To its knowledge, no director, officer or employee of the Company or any of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation of litigation. Without limitation of the foregoing, 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, any of its Subsidiaries or any current or former director or officer of the Company or any of its Subsidiaries relating to the Company. Neither the Company nor any of its Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.

(u)    Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.

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(v)    Employee Matters; Benefit Plans.

(i)    The Company and its Subsidiaries have complied in all material respects with all applicable laws relating to wages, hours, equal opportunity, collective bargaining, workers’ compensation insurance and the payment of social security and other taxes. The Company is not aware that any officer, key employee or group of employees intends to terminate his, her or their employment with the Company or its Subsidiaries, as the case may be, nor does the Company have a present intention, or know of a present intention of its Subsidiaries, to terminate the employment of any officer or key employee. There are no pending or, to the knowledge of the Company, threatened employment discrimination charges or complaints against or involving the Company or its Subsidiaries before any federal, state, or local board, department, commission or agency, or unfair labor practice charges or complaints, disputes or grievances affecting the Company or its Subsidiaries.

(ii)    No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees are good.

(iii)    The Company and its Subsidiaries are in compliance in all material respects with the applicable provisions of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). No benefit plan of the Company or any Subsidiary (a) is subject to the provisions of Section 412 of the Code or Part 3 of Subtitle B of Title I of ERISA, (b) is subject to Title IV of ERISA, (c) is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA). Since inception, neither the Company, its Subsidiaries, nor any business or entity treated as a single employer with the Company or its Subsidiaries for purposes of Title IV of ERISA contributed to or was obliged to contribute to a pension plan that was at any time subject to Title IV of ERISA.

(w)    Assets; Title. The Company and the Subsidiaries have good and marketable title in fee simple to all real property 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 therefor 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 are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in material compliance.

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(x)    Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC Documents and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within the SEC Documents, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(y)    Environmental Laws. The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as defined below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.

(z)    Subsidiary Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such Subsidiary.

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(aa)    Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such claim.

(bb)    Internal Accounting and Disclosure Controls. Other than as disclosed in the SEC Documents, the Company and each of its Subsidiaries maintains internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that is effective to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP, including that (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 and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. Other than as disclosed in the SEC Documents, the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the 1934 Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Company’s management, including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure. Since January 1, 2024, other than as disclosed in the SEC Documents, neither the Company nor any of its Subsidiaries has received any notice or correspondence from any accountant, Governmental Entity or other Person relating to any material weakness or significant deficiency in any part of the internal controls over financial reporting of the Company or any of its Subsidiaries.

(cc)    Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.

(dd)    Investment Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment company,” an affiliate of an “investment company,” a company controlled by an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.

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(ee)    Acknowledgement Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that (i) following the public disclosure of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof, none of the Buyers have been asked by the Company or any of its Subsidiaries to agree, nor has any Buyer agreed with the Company or any of its Subsidiaries, to desist from effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long) any securities of the Company, or “derivative” securities based on securities issued by the Company or to hold any of the Securities for any specified term; (ii) each Buyer shall not be deemed to have any affiliation with or control over any arm’s length counterparty in any “derivative” transaction; and (iii) each Buyer may rely on the Company’s obligation to timely deliver shares of Common Stock upon conversion or exchange, as applicable, of the Securities as and when required pursuant to the Transaction Documents for purposes of effecting trading in the Common Stock of the Company; provided, however, each of the Buyers agree and acknowledge that so long as any of the Preferred Shares remain outstanding, each Buyer shall not engage in “derivative” transactions to which any such Buyer is a party, directly or indirectly, presently may have a “short” position in the Common Stock, Short Sales and/or similar type transactions. The Company further understands and acknowledges that following the public disclosure of the transactions contemplated by the Transaction Documents pursuant to the 8-K Filing (as defined below), one or more Buyers may engage in hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable shares of Common Stock) at various times during the period that the Securities are outstanding, including, without limitation, during the periods that the value and/or number of the Conversion Shares, deliverable with respect to the Securities are being determined and such hedging and/or trading activities (including, without limitation, the location and/or reservation of borrowable shares of Common Stock), if any, can reduce the value of the existing stockholders’ equity interest in the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that such aforementioned hedging and/or trading activities do not constitute a breach of this Agreement, the Certificate of Designations, or any other Transaction Document or any of the documents executed in connection herewith or therewith.

(ff)    Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities (other than the Placement Agent), (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries or (iv) paid or agreed to pay any Person for research services with respect to any securities of the Company or any of its Subsidiaries.

(gg)    U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been a U.S. real property holding corporation within the meaning of Section 897 of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.

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(hh)    Registration Eligibility. Except for rights pursuant to the Registration Rights Agreement, no Person has any right to cause the Company or any Subsidiary to effect the registration under the 1933 Act of any securities of the Company or any Subsidiary. The Company is eligible to register the Registrable Securities (as defined in the Registration Rights Agreement) for resale by the Buyers using a registration statement on Form S-3 promulgated under the 1933 Act.

(ii)    Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be paid in connection with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder 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.

(jj)    Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.

(kk)    Shell Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).

(ll)    Illegal or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the best of the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person or (ii) to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving the direct or indirect use of funds of the Company or any of its Subsidiaries.

(mm)    Money Laundering. The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001 and all other applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)) and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.

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(nn)    Stock Option Plans. Each stock option granted by the Company was granted (i) in accordance with the terms of the applicable stock option plan of the Company and (ii) with an exercise price at least equal to the fair market value of the shares of Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.

(oo)    No Disagreements with Accountants and Lawyers. There are no material 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. In addition, on or prior to the date hereof, the Company had discussions with its accountants about its financial statements previously filed with the SEC. Based on those discussions, the Company has no reason to believe that it will need to restate any such financial statements or any part thereof.

(pp)    No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under the 1933 Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering 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 1933 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 1933 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. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Buyers a copy of any disclosures provided thereunder.

(qq)    Other Covered Persons. The Company is not aware of any Person (other than the Placement Agent) that has been or will be paid (directly or indirectly) remuneration for solicitation of Buyers or potential purchasers in connection with the sale of any Regulation D securities.

(rr)    No Additional Agreements. The Company does not have any agreement or understanding with any Buyer with respect to the transactions contemplated by the Transaction Documents other than as specified in the Transaction Documents.

(ss)    Public Utility Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate” of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.

(tt)    Federal Power Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility” under the Federal Power Act, as amended.

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(uu)    Cybersecurity. The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants that would reasonably be expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679); (iv) any information which would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related to an identified person’s health or sexual orientation. Since January 1, 2024, there have been no breaches, violations, outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person or such, nor any incidents under internal review or investigations relating to the same except in each case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification except in each case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.

(vv)    Compliance with Data Privacy Laws. The Company and its Subsidiaries are in compliance with all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its Subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance with, the GDPR (EU 2016/679) (collectively, the “Privacy Laws”) except in each case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. To ensure compliance with the Privacy Laws, the Company and its Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”). The Company and its Subsidiaries have made all disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.

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(ww)     Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their 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 other Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing representations in effecting transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries, their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries 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 the light of the circumstances under which they were made, not misleading. Each press release issued by the Company or any of its Subsidiaries during the twelve (12) months preceding the date of this Agreement did not at the time of release 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 the light of the circumstances under which they are made, not misleading. Other than with respect to the transactions contemplated by this Agreement and the other Transaction Documents, no event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been so publicly disclosed. The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.

4.           **** COVENANTS.

(a)    Best Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by it as provided in Section 7 of this Agreement.

(b)    Form D and Blue Sky. The Company shall file a Form D with respect to the Securities as required under Regulation D and provide copies thereof to each Buyer promptly after such filing. The Company shall, on or before each applicable Closing Date, take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale to the Buyers at the applicable Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyers on or prior to the applicable Closing Date. Without limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports relating to the offer and sale of the Securities required under all applicable securities laws (including, without limitation, all applicable federal securities laws and all applicable “Blue Sky” laws), and the Company shall comply with all applicable federal, foreign, state and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities to the Buyers.

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(c)    Reporting Status. From the date hereof until the date on which the Buyers shall have sold all of the Registrable Securities (the “Reporting Period”), the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination. The Company shall take all actions necessary to maintain its eligibility to register the Registrable Securities for resale by the Buyers on a registration statement on Form S-3.

(d)    Use of Proceeds. The Company shall use the proceeds from the sale of the Securities for (i) for general corporate and working capital purposes, (ii) to restructure the Company’s legacy catheter business, including a potential sale of various medical devices owned by the Company, (iii) to satisfy, settle, eliminate, or otherwise resolve legacy liabilities and obligations and to simplify the Company’s capital structure, and (iv) to reduce operating expenses and cash burn and position of the Company as a streamlined public company with a clean and simplified balance sheet. The foregoing action(s) shall be taken as soon as legally permissible and applicable. Additionally, the Company shall implement an aggressive reduction of operating expenses and cash burn to optimize operational efficiency as soon as reasonably practicable.

(e)    Financial Information. The Company agrees to send the following to each Investor (as defined in the Registration Rights Agreement) during the Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system, within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, any other interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements and/or cash flow statements for any period other than any annual report, any Current Reports on Form 8-K and any registration statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with the SEC through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire), on the same day as the release thereof, e-mail copies of all press releases issued by the Company or any of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR, copies of any notices and other information made available or given to the stockholders of the Company, as applicable, generally, contemporaneously with the making available or giving thereof to the stockholders.

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(f)    Listing. The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Registrable Securities upon each 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) (subject to official notice of issuance) and shall maintain such listing or designation for quotation (as the case may be) of all Registrable Securities 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 authorization for quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Capital Market, or the Nasdaq Global Select Market (each, an “Eligible Market”). Neither the Company nor any of its Subsidiaries shall take any action which could be reasonably expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(f).

(g)    Fees. The Company shall reimburse the Buyers for all costs and expenses incurred by it or its affiliates in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents (including, without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of Haynes and Boone, LLP (the “Buyer Counsel”), counsel to the Buyers, any other reasonable fees and expenses in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents and due diligence and regulatory filings in connection therewith) (the “Transaction Expenses”); provided reimbursement by the Company of any Transaction Expenses in excess of $50,000 shall require prior consent of the Company, which consent shall not be unreasonably withheld, delayed or conditioned. and shall be withheld by the Buyers from its purchase price at applicable Closing. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, transfer agent fees, DTC (as defined below) fees or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby (including, without limitation, any fees or commissions payable to the Placement Agent). The Company shall pay, and the Company shall hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to the Buyers.

(h)    Pledge of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that the Securities may be pledged by a Buyer in connection with a bona fide margin agreement or other loan or financing arrangement that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including, without limitation, Section 2(g) hereof; provided that a Buyer and its pledgee shall be required to comply with the provisions of Section 2(g) hereof in order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by a Buyer.

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(i)    Disclosure of Transactions and Other Material Information.

(i)    Disclosure of Transaction. The Company shall no later than 9:30 a.m., New York time, on the Business Day following the date of this Agreement, file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement (and all schedules to this Agreement, to the extent material), the form of Certificate of Designations and the form of the Registration Rights Agreement) (including the attachments thereto, the “8-K Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided to any of the Buyers by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate.

(ii)    Limitations on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may be granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants of this Agreement, or any of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material, non-public information, as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees, affiliates, stockholders or agents, for any such disclosure. To the extent that the Company, directly or indirectly, delivers any material, non-public information to a Buyer without such Buyer’s consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) each Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without the prior written consent of the applicable Buyer (which may be granted or withheld in such Buyer’s sole discretion), the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of such Buyer in any filing, announcement, release or otherwise. Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written definitive and binding agreement executed by the Company and such particular Buyer (it being understood and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company and/or any of its Subsidiaries.

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(j)    Additional Registration Statements. From the date hereof until the Applicable Date (as defined below) and at any time thereafter while any Registration Statement is not effective or the prospectus contained therein is not available for use or any Current Public Information Failure (as defined in the Registration Rights Agreement) exists, the Company shall not file a registration statement or an offering statement under the 1933 Act relating to securities that are not the Registrable Securities (other than (i) a registration statement on Form S‐-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement) and, (ii) with respect to the securities issued or issuable pursuant to the Concurrent Purchase Agreements). “Applicable Date” means the earlier of (x) the first date on which the resale by the Buyers of all the Registrable Securities required to be filed on the initial Registration Statement pursuant to the Registration Rights Agreement is declared effective by the SEC (and each prospectus contained therein is available for use on such date) or (y) the first date on which all of the Registrable Securities are eligible to be resold by the Buyers pursuant to Rule 144 (or, if a Current Public Information Failure has occurred and is continuing, such later date after which the Company has cured such Current Public Information Failure).

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(k)    Additional Issuance of Securities. The Company will not, without the prior written consent of the Required Holders (as defined herein), directly or indirectly, issue any other securities that would cause a breach or default under the Certificate of Designations. The Company agrees that unless Stockholder Approval (as defined herein) is obtained, the Company shall not affect any Dilutive Issuance (as defined in the applicable Certificate of Designation). The Company further agrees that for the period commencing on the date hereof and ending on the date that is the later of (i) ninety (90) days following the effective date (the “Effective Date”) of the resale registration statement registering for resale the Conversion Shares (the “Resale Registration Statement”) or (ii) ninety (90) days following the receipt of the Stockholder Approval (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities (as defined below), any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the Restricted Period or at any time thereafter), is referred to as a “Subsequent Placement”). Notwithstanding the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock issued or issuable to directors, officers, employees or other service providers of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (1) following the date hereof (the “Equity Award Restriction Date”), all such issuances (taking into account the shares of Common Stock issuable upon exercise of such awards) after the Equity Award Restriction Date pursuant to this clause (i) do not, in the aggregate, exceed more than five percent (5.0%) of the shares of Common Stock issued and outstanding immediately prior to the Equity Award Restriction Date and (2) the exercise price of any such options is not lowered and none of such options are amended to increase the number of shares issuable thereunder or extend the term of such options; (ii) shares of Common Stock issued or issuable upon the conversion or exercise of Convertible Securities (other than shares of Common Stock issued or issuable pursuant to an Approved Stock Plan that are covered by clause (i) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase shares of Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible Securities are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than those issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that materially adversely affects any of the Buyers; (iii) the Preferred Shares, (iv) the Conversion Shares, (v) any other securities issued or issuable pursuant to this Agreement, any of the Transaction Documents or the Concurrent Purchase Agreements, and (vi) securities issued as consideration for the acquisition of another entity by the Company by merger, purchase of substantially all of the assets or other reorganization or bona fide joint venture agreement, provided that such issuance is approved by the majority of the disinterested directors of the Company and provided that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith during the Restricted Period and such issuance does not, in the aggregate, exceed more than five percent (5.0%) of the shares of Common Stock issued and outstanding immediately prior to the date hereof (each of the foregoing in clauses (i) through (vi), collectively the “Excluded Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the Board prior to or subsequent to the date hereof pursuant to which shares of Common Stock or other awards convertible, exercisable for or exchangeable for shares of Common Stock may be issued to any employee, officer, director or other service provider for services provided to the Company and/or a Subsidiary in their capacity as such.

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(l)    Reservation of Shares. So long as any of the Preferred Shares remain outstanding, the Company shall take all action necessary to at all times have authorized, and reserved for the purpose of issuance, no less than one hundred percent (100%) of the maximum number of shares of Common Stock issuable upon conversion of all the Preferred Shares then outstanding (assuming for purposes hereof that (x) the Preferred Shares are convertible at the Floor Price (as defined in the applicable Certificate of Designations) then in effect and (y) any such conversion shall not take into account any limitations on the conversion of the Preferred Shares set forth in the Certificate of Designations), (collectively, the “Required Reserve Amount”); provided that at no time shall the number of shares of Common Stock reserved pursuant to this Section 4(l) be reduced other than proportionally in connection with any conversion, exercise and/or redemption, as applicable of Preferred Shares. If at any time the number of shares of Common Stock authorized and reserved for issuance is not sufficient to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares, including, without limitation, calling an annual or special meeting of stockholders to authorize additional shares to meet the Company’s obligations pursuant to the Transaction Documents, in the case of an insufficient number of authorized shares, obtain stockholder approval of an increase in such authorized number of shares, and voting the management shares of the Company in favor of an increase in the authorized shares of the Company to ensure that the number of authorized shares is sufficient to meet the Required Reserve Amount.

(m)    Conduct of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or regulation of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually or in the aggregate, in a Material Adverse Effect.

(n)    Restriction on Variable Securities. Commencing on the date hereof until the twelve (12) months following the effectiveness date of the resale registration statement(s) registering all of the shares of Common Stock underlying the Additional Investment Right, the Company and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages. Any existing “at-the-market” facility of the Company shall be terminated prior to the date of this Agreement. Notwithstanding the foregoing, this Section 4(n) shall not apply in connection with the issuance of any Excluded Securities.

(o)    [Reserved].

(p)    Dilutive Issuances. For so long as thirty-three and one-third percent (33.33%) of any issued Preferred Shares remain outstanding, the Company shall not, in any manner, enter into or affect any Dilutive Issuance (as defined in the Certificate of Designations) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon conversion of any Preferred Shares any shares of Common Stock in excess of that number of shares of Common Stock which the Company may issue upon conversion of the Preferred Shares without breaching the Company’s obligations under the rules or regulations of the Principal Market.

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(q)    Restriction of Redemption and Cash Dividends. For so long as thirty-three and one-third percent (33.33%) of any issued Preferred Shares are outstanding, except as provided in the Certificate of Designations, the Company shall not, directly or indirectly, redeem, or declare or pay any cash dividend or distribution on, any securities of the Company without the prior express written consent of the Buyers.

(r)    Corporate Existence. For so long as thirty-three and one-third percent (33.33%) of any issued Preferred Shares are outstanding, the Company shall not be party to any Fundamental Transaction (as defined in the Certificate of Designations) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Certificate of Designations.

(s)    Stock Splits. For so long as thirty-three and one-third percent (33.33%) of any issued Preferred Shares are outstanding, the Company shall not effect any stock combination, reverse stock split or other similar transaction (or make any public announcement or disclosure with respect to any of the foregoing) without the prior written consent of the Required Holders (as defined below); provided, however, that the Company may effect a stock combination, reverse stock split or other similar transaction if necessary to comply with the requirements of the Principal Market without the prior written consent of the Required Holders.

(t)    Conversion Procedures. The form of Conversion Notice (as defined in the Certificate of Designations) included in the Certificate of Designations set forth the totality of the procedures required of the Buyers in order to convert the Preferred Shares. Except as provided in Section 5(d), no additional legal opinion, other information or instructions shall be required of the Buyers to convert their Preferred Shares. The Company shall honor conversions of the Preferred Shares and shall deliver the Conversion Shares in accordance with the terms, conditions and time periods set forth in the Certificate of Designations.

(u)    Regulation M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the distribution of the Securities contemplated hereby.

(v)    General Solicitation. None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act) or any person acting on behalf of the Company or such affiliate will solicit any offer to buy or offer or sell the Securities 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.

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(w)    Stockholder Approval. The Company shall provide each stockholder entitled to vote at a special meeting of stockholders of the Company(the “Stockholder Meeting”), which shall be held as soon as practicable and in any event, no later than the Stockholder Meeting Deadline (as defined in the Financing Purchase Agreement), a proxy statement, in a form reasonably acceptable to the Buyers, at the expense of the Company, soliciting each such stockholder’s affirmative vote at the Stockholder Meeting for approval of resolutions (collectively, “Stockholder Resolutions”) (i) providing for the issuance of the Securities in compliance with the rules and regulations of the Principal Market and (ii) a reverse stock split of the Company’s Common Stock at a ratio in the range of 1-for-2 to 1-for-100, with such ratio to be determined by the Board in its discretion and as disclosed in a public announcement (the “Stockholder Approval”, and the date the Stockholder Approval is obtained, the “Stockholder Approval Date”), and the Company shall use its reasonable best efforts to solicit its stockholders’ approval of such Stockholder Resolutions and to cause the board of directors of the Company to recommend to the stockholders that they approve such Stockholder Resolutions. The Company shall be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company's reasonable best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to be held within ninety (90) days. If, despite the Company's reasonable best efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held semi-annually thereafter until such Stockholder Approval is obtained. Notwithstanding the above, the Company shall not be required to hold a Stockholder Meeting or seek Stockholder Approval any time following the time when the Preferred Shares are no longer outstanding or the shares of Common Stock issued pursuant to the Preferred Shares may be issued without breaching the Company’s obligations under the rules and regulations of the Principal Market.

(x)    Integration. None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting on behalf of the Company or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the 1933 Act) which will be integrated with the sale of the Securities in a manner which would require the registration of the Securities under the 1933 Act, and the Company will take all action that is appropriate or necessary to assure that its offerings of other securities will not be integrated for purposes of the 1933 Act or the rules and regulations of the Principal Market, with the issuance of Securities contemplated hereby.

(y)    Notice of Disqualification Events. The Company will notify the Buyers in writing, prior to the 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.

(z)    Books and Records. The Company will keep proper books of record and account, in which full and correct entries shall be made of all financial transactions and the asset and business of the Company and its Subsidiaries in accordance with GAAP.

(aa)    Closing Documents. On or prior to twenty (20) calendar days after the Closing Date, the Company agrees to deliver, or cause to be delivered, to each Buyer and Buyer Counsel a complete closing set of the executed Transaction Documents (which may be delivered in electronic format), the applicable Securities (which may be delivered via book-entry statement) and any other document required to be delivered to any party pursuant to Section 7 hereof or otherwise.

(bb)    Prior Consent. For as long as the Preferred Shares remain outstanding, the Company shall not, without the prior written consent of the Buyers, directly or indirectly (i) incur, assume, guarantee, or otherwise become liable for any Indebtedness that is senior to or pari passu with the Company’s obligations under this Agreement or the Certificate of Designations or (ii) enter into or consummate any material merger, consolidation, acquisition, sale or disposition of material assets, related-party transaction, or other similar strategic transaction.

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5. **** REGISTER; TRANSFER AGENT INSTRUCTIONS; LEGEND.

(a)    Register. The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice to each holder of Securities), a register for the Securities in which the Company shall record the name and address of the Person in whose name the Securities have been issued (including the name and address of each transferee), the principal number and/or amount of the Preferred Shares held by such Person, the number of Conversion Shares issuable pursuant to the terms of the Preferred Shares held by such Person. The Company shall keep the register open and available at all times during business hours for inspection of any Buyer or its legal representatives.

(b)    Transfer Agent Instructions. On or prior to the Closing Date, the Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer agent (as applicable, the “Transfer Agent”) in a form acceptable to each of the Buyers (the “Irrevocable Transfer Agent Instructions”) to issue certificates or credit shares (to the extent unrestricted shares are issued) to the applicable balance accounts at The Depository Trust Company (“DTC”), registered in the name of each Buyer or its respective nominee(s), for the Conversion Shares in such amounts as specified from time to time by each Buyer to the Company upon conversion of the Preferred Shares. The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5(b), and stop transfer instructions to give effect to Section 2(g) hereof, will be given by the Company to its transfer agent with respect to the Securities, and that the Securities shall otherwise be freely transferable on the books and records of the Company, as applicable, to the extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment or transfer of the Securities in accordance with Section 2(g), the Company shall permit the transfer and shall promptly instruct its transfer agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations as specified by such Buyer to effect such sale, transfer or assignment. In the event that such sale, assignment or transfer involves Conversion Shares sold, assigned or transferred pursuant to an effective registration statement or in compliance with Rule 144, the transfer agent shall issue such shares to such Buyer, assignee or transferee (as the case may be) without any restrictive legend in accordance with Section 5(d) below. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required. The Company shall cause its counsel to issue the legal opinion referred to in the Irrevocable Transfer Agent Instructions to the Company’s transfer agent on each Effective Date (as defined in the Registration Rights Agreement). Any fees (with respect to the transfer agent, counsel to the Company or otherwise) associated with the issuance of such opinion or the removal of any legends on any of the Securities shall be borne by the Company.

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(c)    Legends. Each Buyer understands that the Securities have been issued (or will be issued in the case of the Conversion Shares) pursuant to an exemption from registration or qualification under the 1933 Act and applicable state securities laws, and except as set forth below, the Securities shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates):

[NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN][THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL 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.

(d)    Removal of Legends. Certificates evidencing the Conversion Shares shall not be required to contain the legend set forth in Section 5(c) above or any other legend (i) while a registration statement (including a Registration Statement) covering the resale of such Conversion Shares is effective under the 1933 Act, (ii) following any sale of such Conversion Shares pursuant to Rule 144 (assuming the transferor is not an affiliate of the Company), (iii) if such Conversion Shares are eligible to be sold, assigned or transferred under Rule 144 (provided that a Buyer 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 Buyer’s counsel), (iv) in connection with a sale, assignment or other transfer (other than under Rule 144), provided that such Buyer provides the Company with an opinion of counsel to such Buyer, in a generally acceptable form, to the effect that such sale, assignment or transfer of the Conversion Shares may be made without registration under the applicable requirements of the 1933 Act or (v) if such legend is not required under applicable requirements of the 1933 Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the SEC). If a legend is not required pursuant to the foregoing, the Company shall no later than one (1) Business Day (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement of a trade initiated on the date such Buyer delivers such legended certificate representing such Conversion Shares to the Company) following the delivery by a Buyer to the Company or the transfer agent (with notice to the Company) of a legended certificate representing such Securities (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 such Buyer as may be required above in this Section 5(d) or as reasonably required by the Company’s transfer agent, as directed by such Buyer, either: (A) provided that the Company’s transfer agent is participating in the DTC Fast Automated Securities Transfer Program (“FAST”), credit the aggregate number of shares of Common Stock to which such Buyer shall be entitled to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system or (B) if the Company’s transfer agent is not participating in FAST, issue and deliver (via reputable overnight courier) to such Buyer, a certificate representing such Conversion Shares that is free from all restrictive and other legends, registered in the name of such Buyer or its designee (the date by which such credit is so required to be made to the balance account of such Buyer’s or such Buyer’s designee with DTC or such certificate is required to be delivered to such Buyer pursuant to the foregoing is referred to herein as the “Required Delivery Date”, and the date such shares of Common Stock are actually delivered without restrictive legend to such Buyer or such Buyer’s designee with DTC, as applicable, the “Share Delivery Date”). The Company shall be responsible for any transfer agent fees or DTC fees with respect to any issuance of Securities or the removal of any legends with respect to any Securities in accordance herewith.

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(e)    [Reserved.]

(f)    FAST Compliance. While any Securities remain outstanding, the Company shall maintain a transfer agent that participates in FAST.

6. **** CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.

The obligation of the Company hereunder to issue and sell the Preferred Shares, as applicable, to each Buyer at the applicable Closing is subject to the satisfaction, at or before the applicable Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof:

(a)    On or prior to the First Closing Date such Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company.

(b)    At each applicable Closing, such Buyer and each other Buyer shall have delivered to the Company the applicable purchase price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(g)), as set forth opposite such Buyer’s name on the Schedule of Buyers, for the Preferred Shares, as applicable, being purchased by such Buyer at the applicable Closing by wire transfer of immediately available funds in accordance with the wire instructions provided by the Company.

(c)    The representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as of each 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 specific date), and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to each Closing Date.

(d)    No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.

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7. **** CONDITIONS TO EACH BUYER’S OBLIGATION TO PURCHASE.

The obligation of each Buyer hereunder to purchase the Preferred Shares at each Closing is subject to the satisfaction, at or before each Closing Date, of each of the following conditions, unless as otherwise noted below, provided that these conditions are for each Buyer’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:

(a)    On or prior to the First Closing Date the Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the applicable Transaction Documents to which it is a party (other than as set forth below as related to the applicable Certificate of Designations, which shall be delivered at each applicable Closing).

(b)    On the First Closing Date only, the Company shall have duly delivered to such Buyer at the First Closing a certificate or book-entry statement evidencing such aggregate number of shares of Series C-1 Preferred Stock as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers; and

(c)    On the Second Closing Date only, the Company shall have duly delivered to such Buyer at the Second Closing:

(i)    a certificate or book-entry statement evidencing such aggregate number of shares of Series C-2 Preferred Stock as is set forth across from such Buyer’s name in column (5) of the Schedule of Buyers; and

(ii)    evidence of the filing and acceptance of the Series C-2 Certificate of Designations from the Secretary of State of Delaware.

(d)    On the Third Closing Date only, the Company shall have duly delivered to such Buyer at the Third Closing:

(i)    a certificate or book-entry statement evidencing such aggregate number of shares of Series C-3 Preferred Stock as is set forth across from such Buyer’s name in column (7); and

(ii)     evidence of the filing and acceptance of the Series C-3 Certificate of Designations from the Secretary of State of Delaware.

(e)    On each Additional Closing Date only, as the case may be, the Company shall have duly delivered to such Buyer at such Additional Closing, such aggregate number of shares of Series C-4 Preferred Stock equal to the quotient of the (x) aggregate purchase price for the shares of Series C-4 Preferred Stock applicable to such Additional Closing divided by (y) the stated value of the Series C-4 Preferred Stock. Additionally, on the first Additional Closing Date to occur, as the case may be, the Company shall have duly delivered to such Buyer evidence of the filing and acceptance of the Series C-4 Certificate of Designations from the Secretary of State of Delaware.

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(f)    Prior to each of the Second Closing Date, the Third Closing Date and any Additional Closing Date, the Company shall have received the Stockholder Approval.

(g)    Prior to each of the Third Closing Date and any Additional Closing Date, the Resale Registration Statement shall have been declared effective by the SEC.

(h)    The Company shall have delivered and the Buyer shall have received the opinion of Quick Law Group PC, the Company’s counsel, dated as of each of the First Closing Date, the Second Closing Date, the Third Closing Date and each and any Additional Closing Date, as applicable, addressed to each Buyer, in the form acceptable to such Buyer and the Buyer’s Counsel.

(i)    The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.

(j)    The Company shall have delivered to such Buyer, a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within five (5) calendar days of each Closing Date.

(k)    The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within five (5) calendar days of each Closing Date.

(l)    The Company shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary of the Company and dated as of the applicable Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company as in effect at the applicable Closing.

(m)    Each and every representation and warranty of the Company shall be true and correct as of the date when made and as of each 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 specific 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 each Closing Date. Such Buyer shall have received a certificate, duly executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of each Closing Date, to the foregoing effect.

(n)    The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares of Common Stock outstanding on the Closing Date immediately prior to each Closing Date.

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(o)    The Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended, as of each Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of each Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling below the minimum maintenance requirements of the Principal Market.

(p)    The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market, if any.

(q)    No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.

(r)    Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect, provided, however, that the definition of “Material Adverse Effect” for the purpose of this clause (xiv), will not include any change or effect that results from (A) changes in law or interpretations thereof, or regulatory policy or interpretation, by any Governmental Entity so long as such change does not have a disproportionate effect on the Company, (B) changes in applicable accounting rules or principles, including changes in GAAP, so long as such change does not have a disproportionate effect on the Company, (C) changes in general economic conditions, and events or conditions generally affecting the industries in which the Company operates, so long as such change does not have a disproportionate effect on the Company, or (D) national or international hostilities, acts of terror or acts of war.

(s)    Prior to the Second Closing Date, the Third Closing Date and each Additional Closing Date, the Company shall have filed a Supplemental Listing Application (the “SLAP”) with the Principal Market, and the Principal Market shall have provided the written approval of such SLAP. Prior to each Closing Date, the Company shall confirm it has not received any notice objecting to the SLAP and/or the listing of the Conversion Shares from the Principal Market.

(t)    The Company shall have delivered to the Buyer and the Buyer shall have received the wire transfer instructions of the Company.

(u)    The Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

(v)    The closing price of the Company’s Common Stock as reported on the Principal Market on the Trading Day prior to each Closing shall not be less than $0.35.

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8. **** TERMINATION.

This Agreement may be terminated (i) by the mutual consent of each of the Company and the Buyers or (ii) with respect to a Buyer, if the Company has breached the terms of this Agreement in a manner that would cause the failure of the conditions to closing hereunder to be met (and such breach remains uncured after thirty (30) days’ notice). Upon any termination in accordance with this Section 8 by a Buyer, such party shall have the right to terminate its obligations under this Agreement with respect to itself at any time on or after the close of business on such date (without liability of such Buyer to any other party); provided, however, the abandonment of the sale and purchase of the Preferred Shares by such Buyer shall be applicable only to such Buyer providing such written notice, provided further that no such termination by any party shall affect any obligation of the Company under this Agreement to reimburse such Buyer for the expenses described in Section 4(g) above. Nothing contained in this Section 8 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or the other Transaction Documents.

9. **** MISCELLANEOUS.

(a)    Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or under any of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to such Buyer or to enforce a judgment or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.

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(b)    Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by facsimile or electronic transmission (including DocuSign and similar) or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

(c)    Headings; Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in which they are found.

(d)    Severability; Maximum Payment Amounts. If any provision of this Agreement 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 Agreement so long as this Agreement 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). Notwithstanding anything to the contrary contained in this Agreement or any other Transaction Document (and without implication that the following is required or applicable), it is the intention of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the case may be), or payable to or received by any of the Buyers, under the Transaction Documents (including without limitation, any amounts that would be characterized as “interest” under applicable law) exceed amounts permitted under any applicable law. Accordingly, if any obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant the Transaction Documents is finally judicially determined to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed to have been made by mutual mistake of such Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by the applicable law. Such adjustment shall be effected, to the extent necessary, by reducing or refunding, at the option of such Buyer, the amount of interest or any other amounts which would constitute unlawful amounts required to be paid or actually paid to such Buyer under the Transaction Documents. For greater certainty, to the extent that any interest, charges, fees, expenses or other amounts required to be paid to or received by such Buyer under any of the Transaction Documents or related thereto are held to be within the meaning of “interest” or another applicable term to otherwise be violative of applicable law, such amounts shall be pro-rated over the period of time to which they relate.

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(e)    Entire Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the Company, its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by any Buyer with respect to shares of Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein contain the entire understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing contained in this Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements any Buyer has entered into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries prior to the date hereof with respect to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or amend in any respect any obligations of the Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any other Person, in any agreement entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries and any Buyer, or any instruments any Buyer received from the Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments shall continue in full force and effect. Except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. For clarification purposes, the Recitals are part of this Agreement. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders (as defined below), and any amendment to any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities, as applicable; provided that no such amendment shall be effective to the extent that it (A) applies to less than all of the holders of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer without such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion). No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party, provided that the Required Holders may waive any provision of this Agreement, and any waiver of any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities, as applicable, provided that no such waiver shall be effective to the extent that it (1) applies to less than all of the holders of the Securities then outstanding (unless a party gives a waiver as to itself only) or (2) imposes any obligation or liability on any Buyer without such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion). No consideration (other than reimbursement of legal fees) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to the Agreement. The Company has not directly or indirectly, made any agreements with any Buyers relating to the terms or conditions of the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this Agreement, no Buyer has made any commitment or promise or has any other obligation to provide any financing to the Company, any Subsidiary or otherwise. As a material inducement for each Buyer to enter into this Agreement, the Company expressly acknowledges and agrees that (x) no due diligence or other investigation or inquiry conducted by a Buyer, any of its advisors or any of its representatives shall affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document and (y) unless a provision of this Agreement or any other Transaction Document is expressly preceded by the phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC Documents shall affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, Company’s representations and warranties contained in this Agreement or any other Transaction Document. “Required Holders” means (I) prior to the First Closing Date, each Buyer entitled to purchase, in the aggregate, at least a majority of the number of Preferred Shares at the Closing and (II) on or after the First Closing Date, holders of a majority of the Registrable Securities as of such time (excluding any Registrable Securities held by the Company or any of its Subsidiaries as of such time) issued or issuable hereunder or pursuant to the Certificate of Designations (or the Buyers, with respect to any waiver or amendment of Section 4(o)).

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(f)    Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronic mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to such recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications shall be:

If to the Company:

Catheter Precision, Inc.

1670 Highway 160 West

Suite 205

Fort Mill, SC 29708

Attention: Executive Chairman and CEO

E-Mail: DJenkins@catheterprecision.com

With a copy (for informational purposes only) to:

Quick Law Group PC

1035 Pearl Street, Suite 403

Boulder, CO 80302

Attention: Jeff Quick

E-mail: jquick@quicklawgroup.com

If to the Transfer Agent:

Equiniti Trust Company

PO Box 500

Newark, NJ 07101

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Telephone: (800) 937-5449 or (718) 921-8124

Attention: Daniel Spengel

E-Mail: daniel.spengel@equiniti.com (with copy to admin44@equiniti.com)

If to a Buyer, to its mailing address and e-mail address set forth on the Schedule of Buyers, with copies to such Buyer’s representatives as set forth on the Schedule of Buyers

with a copy (for informational purposes only) to:

Haynes and Boone, LLP

30 Rockefeller Plaza, 26th Floor

New York, New York 10112

Telephone: (212) 659-7300

Attention: Rick Werner

E-mail: rick.werner@haynesboone.com

or to such other mailing address and/or e-mail address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change, provided that Buyer Counsel shall only be provided copies of notices sent to the lead Buyer. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.

(g)    Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of any of the Preferred Shares. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Required Holders, including, without limitation, by way of a Fundamental Transaction (as defined in the Certificate of Designations) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Certificate of Designations). A Buyer may assign some or all of its rights hereunder in connection with any transfer of any of its Securities without the consent of the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights.

(h)    No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than the Indemnitees referred to in Section 9(k) and the Placement Agent.

(i)    Survival. The representations, warranties, agreements and covenants shall survive the Closing. Each Buyer shall be responsible only for its own representations, warranties, agreements and covenants hereunder.

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(j)    Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

(k)    Indemnification. In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless each Buyer and each holder of any Securities and all of their stockholders, partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Company or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the Company or any Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit, proceeding or claim brought or made against such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company or any Subsidiary) or which otherwise involves such Indemnitee that arises out of or results from (A) the execution, delivery, performance or enforcement of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities, (C) any disclosure properly made by such Buyer pursuant to Section 4(i), or (D) the status of such Buyer or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated by the Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any action or proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights and obligations under this Section 9(k) shall be the same as those set forth in Section 6 of the Registration Rights Agreement.

(l)    Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party. No specific representation or warranty shall limit the generality or applicability of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock and any other numbers in this Agreement that relate to the shares of Common Stock shall be automatically adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions that occur with respect to the Common Stock after the date of this Agreement.

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(m)    Remedies. Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore, the Company recognizes that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such Subsidiary’s (as the case may be) obligations under the Transaction Documents, any remedy at law would inadequate relief to the Buyers. The Company therefore agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a bond or other security. The remedies provided in this Agreement and the other Transaction Documents shall be cumulative and in addition to all other remedies available under this Agreement and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief).

(n)    Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any Subsidiary does not timely perform its related obligations within the periods therein provided, then such Buyer may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company or such Subsidiary (as the case may be), any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.

(o)    Payment Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or 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, foreign, 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. Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction Documents are in United States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation.

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(p)    Judgment Currency.

(i)    If for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement, the conversion shall be made at the Exchange Rate prevailing on the date on which the Principal Market is open for trading (a “Trading Day”) immediately preceding:

(1)    the date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction that will give effect to such conversion being made on such date: or

(2)    the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment Conversion Date”).

(ii)    If in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.

(iii)    Any amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Agreement or any other Transaction Document.

(q)      Independent Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents are several and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company each acknowledge that the Buyers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Buyers are in any way acting in concert or as a group or entity, and the Company shall not assert any such claim with respect to such obligations or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Buyers are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction Documents has been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent for such Buyer in connection with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such Buyer in connection with monitoring such Buyer’s investment in the Securities or enforcing its rights under the Transaction Documents. The Company and each Buyer confirms that each Buyer has independently participated with the Company and its Subsidiaries in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors. Each Buyer shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate the purchase and sale of the Securities contemplated hereby was solely in the control of the Company, not the action or decision of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries and not because it was required or requested to do so by any Buyer. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its Subsidiaries and the Buyers collectively and not between and among the Buyers.

[signature pages follow]

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IN WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.

CATHETER PRECISION, INC.
By:
Name:    David A. Jenkins
Title:      Executive Chairman and CEO

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IN WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.

BUYER:
[  ]
By:
Name:
Title:

[Signature Page to Securities Purchase Agreement]

SCHEDULE OF BUYERS

(1) (2) (3) (4) (5) (6) (7) (8) (9) (10)
Buyer Address Aggregate<br><br> <br>Number of<br><br> <br>Shares of Series<br><br> <br>C-1 Preferred<br><br> <br>Stock <br> (Tranche 1) Aggregate<br><br> <br>Purchase Price<br><br> <br>of Series C-1<br><br> <br>Preferred Stock<br><br> <br>(Tranche 1) Aggregate<br><br> <br>Number of<br><br> <br>Shares of Series<br><br> <br>C-2 Preferred<br><br> <br>Stock <br> (Tranche 2) Aggregate<br><br> <br>Purchase Price pf<br><br> <br>Series C-2<br><br> <br>Preferred Stock<br><br> <br>(Tranche 2) Aggregate<br><br> <br>Number of<br><br> <br>Shares of<br><br> <br>Series C-3<br><br> <br>Preferred<br><br> <br>Stock <br> (Tranche 3) Aggregate<br><br> <br>Purchase<br><br> <br>Price of Series<br><br> <br>C-3 Preferred<br><br> <br>Stock <br> (Tranche 3)
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]
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TOTAL [ ] [ ] [ ] [ ] [ ] [ ]

[Signature Page to Securities Purchase Agreement]

ex_929497.htm

Exhibit 10.2

SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement, dated as of March 9, 2026 (this “Agreement”), among Catheter Precision, Inc., a Delaware corporation (“Buyer”), and Creatd, Inc., a Nevada corporation (“Seller”).

RECITALS

WHEREAS, Buyer owns 199,800 shares of the issued and outstanding shares of common stock par value $0.001 per share (the “Common Stock”) of Fly Flyte, Inc., a New York corporation (the “Company”), which is equal to 19.98% of the issued and outstanding Common Stock of the Company;

WHEREAS, Seller directly owns the remaining 800,200 shares of the issued and outstanding shares of Common Stock (the “Shares”), which is equal to 80.02% of the issued and outstanding Common Stock of the Company;

WHEREAS, Seller owns 100% of the membership interests (the “Membership Interests”) of Ponderosa Air, LLC, a New York limited liability company (“Ponderosa”), the holder of the Federal Aviation Administration (“FAA”) Air Carrier Certificate Number 1POA402M issued under 14 CFR Parts 119 and 135, (“Certificate”) and has been granted economic authority to operate as an air taxi in accordance with 14 C.F.R. § 298.11 by the Department of Transportation (“DOT”); and

WHEREAS, Seller wishes to sell to Buyer, and Buyer wishes to purchase from Seller, the Shares and the Membership Interests, on the terms and conditions set forth in this Agreement, and upon which, Buyer will own 100% of (i) the issued and outstanding Common Stock of the Company and (ii) the Membership Interests of Ponderosa.

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

The defined terms in Schedule I have the meanings included therein.

ARTICLE II

PURCHASE AND SALE

Section 2.01         Purchase and Sale. Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell to Buyer, and Buyer shall purchase from Seller, the Shares and the Membership Interests, free and clear of all Encumbrances, except for Permitted Encumbrances, for the consideration specified in Section 2.02. All Personal Property set forth on Schedule 1.1 shall be distributed to Seller prior to Closing and Buyer shall not receive any benefit with respect to such Personal Property existing as of Closing.

Section 2.02         Purchase Price.

(a)         The aggregate purchase price for the Shares and the Membership Interests shall be $11,554,827.00 (the “Purchase Price”) in United States dollars, which shall be comprised of:

(i)         $5,776,827.00 in United States dollars payable to Seller in cash by wire transfer of immediately available funds, payable as follows:

(A)         $776,827.00 due within three (3) Business Days of the Closing Date (the “Initial Closing Date Payment”);

(B)         $5,000,000.00 payable pursuant to that certain promissory note attached hereto as Exhibit A (the “Promissory Note”), paid in installments as follows: (a) $500,000.00 due within three (3) Business Days of the Buyer’s April 2026 shareholder meeting date, not to exceed fifty (50) calendar days from the signing of this Purchase Agreement; (b) $500,000.00 due on May 15, 2026; (c) $500,000.00 due on June 15, 2026; (d) $500,000.00 due on July 15, 2026; (e) $600,000.00 due on August 15, 2026; (f) $600,000.00 due on September 15, 2026; (g) $600,000.00 due on October 15, 2026; (h) $600,000.00 due on November 15, 2026; (i) $600,000.00 due on December 15, 2026; (clauses (a) through (i), the “Post-Closing Payments”); and

(ii)         $5,778,000.00 shall be satisfied by the issuance to Seller of 5,778 shares of Buyer’s Preferred Series D Stock, par value $0.0001 per share and a stated value of $1,000 per share (the “Preferred Shares”) within three (3) Business Daysfollowing and contingent upon receipt of shareholder approval in accordance with all applicable Laws, New York Stock Exchange (“NYSE”) rules and regulations and Buyers organizational documents (the “Shareholder Approval”), having the rights, preferences and privileges set forth in Buyer’s Certificate of Designations attached hereto as Exhibit B.

Section 2.03         Transactions to be Effected at the Closing or after the Closing.

(a)         Buyer shall:

(i)         at Closing, deliver to (or cause to be delivered to) Seller the Ancillary Documents and all other agreements, documents, instruments or certificates required to be delivered by Buyer at or prior to the Closing pursuant to Section 7.02 of this Agreement;

(ii)         within three (3) Business Days of the Closing Date, deliver to (or cause to be delivered to) Seller the Initial Closing Date Payment, less Indebtedness in excess of the amount set forth on Schedule 5.08, by wire transfer of immediately available funds to an account designated in writing by Seller to Buyer; and

(iii)         within three (3) Business Days following and contingent upon the Shareholder Approval, issue the Preferred Shares, which shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all Encumbrances (other than restrictions under applicable securities Laws), and issued in accordance with the Certificate of Designations attached hereto as Exhibit B, and the Registration Rights Agreement attached hereto as Exhibit C.

(b)         At the Closing, Seller shall deliver to Buyer:

(i)         a duly executed version of the stock power, substantially in the form set forth on Exhibit D hereto (the “Stock Power”), evidencing the transfer of the Shares to Buyer;

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(ii)         a duly executed version of the assignment of membership interests, substantially in the form set forth on Exhibit E hereto (the “Assignment of Membership Interests”), evidencing the transfer of the Membership Interests to Buyer;

(iii)         those certain agreements, documents, instruments or certificates required to be delivered by Seller at or prior to the Closing pursuant to Section 7.01 of this Agreement;

(iv)         evidence reasonably satisfactory to Buyer that none of the assets or properties of the Company Group are subject to any Encumbrances, other than Permitted Encumbrances;

(v)         copies of the certificate of incorporation (or other governing documents) of each member of the Company Group and the resolutions of the Seller or appropriate governing body, as applicable, approving this Agreement and authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, certified to be accurate and complete and in full force and effect as of the Closing;

(vi)         a certificate of good standing (or comparable certificate of status) for each member of the Company Group issued by the Secretary of State (or applicable authority) of its jurisdiction of formation and, to the extent required for the conduct of its business, each other jurisdiction in which such member is qualified to do business, each dated no more than ten (10) Business Days prior to the Closing Date;

(vii)         all books and records pertaining to the Company Group, including all corporate and other records, books of account, contracts, agreements and such other documents or certificates as Buyer may reasonably request including minute books and equityholder records (if any);

(viii)         evidence reasonably satisfactory to Buyer that all regulatory approvals, licenses and permits have been received from each jurisdiction in which any member of the Company Group presently has operations such that Buyer shall be legally entitled to continue to provide the same products and services that the Company Group provided before the consummation of the transactions contemplated hereby;

(ix)         evidence that, as of the Closing Date, (a) Ponderosa is operating in accordance with its Certificate, FAA accepted manuals, Operations Specifications, and all applicable Law, (b) Ponderosa has not received a Letter of Investigation, Notice of Proposed Suspension, Revocation, Civil Penalty or any other similar communication indicating that Ponderosa is not in compliance with all applicable Law, and (c) that, to Seller’s Knowledge, no written notice, order, or determination has been received from the FAA or DOT asserting that the transactions contemplated hereby require FAA or DOT acceptance, approval, recertification, requalification or would result in a material operational limitation;

(x)         evidence that, as of the Closing Date, (a) the Company is operating in accordance with 14 C.F.R. Part 295 and all applicable Law, (b) the Company has not received a Letter of Investigation, Notice of Proposed Suspension, Revocation, Civil Penalty or any other similar communication indicating that the Company is not in compliance with all applicable Law, and (c) that, to Seller’s Knowledge, no written notice, order, or determination has been received from the DOT asserting that the transactions contemplated hereby require notification to, acceptance or approval by the DOT; and

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(xi)         an IRS Form W-9, duly executed by Seller.

Section 2.04         Closing. Subject to the terms and conditions of this Agreement, the purchase and sale of the Shares and the Membership Interests contemplated hereby shall take place at a closing (the “Closing” and, the day on which the Closing takes place being the “Closing Date”) remotely upon the exchange of documents and signatures (or their electronic counterparts). The Closing shall be effective as of 12:01 a.m. Eastern Time on the Closing Date, and title to the Shares and the Membership Interests shall transfer to Buyer as of such time.

Section 2.05         Purchase Price Allocation. After the Closing, Seller and Buyer agree to the amount of the Purchase Price allocated to Ponderosa and the amount of any liabilities of Ponderosa among the assets of Ponderosa based on the fair market value of Ponderosa’s assets. Buyer shall prepare the purchase price allocation and will share it with Seller within 120 days of the Closing Date, which allocation shall be subject to Seller’s reasonable review and consent (not to be unreasonably withheld, conditioned or delayed). Following Seller’s approval of the allocation pursuant to the preceding sentence, in any proceeding related to the determination of any Tax, neither Buyer nor Seller shall contend or represent that such allocation is not a correct allocation. All assets of Ponderosa will be stepped up to their fair market value.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE SELLER, AND THE COMPANY GROUP

As a material inducement to Buyer to enter into and perform its obligations under this Agreement, Seller represents and warrants to Buyer that the statements contained in this ARTICLE III are true and correct as of the date hereof:

Section 3.01         Authority of Seller. Seller is a corporation incorporated in the State of Nevada. Seller has all requisite corporate power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party and to perform its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of this Agreement and each Ancillary Agreement to which it is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate action on the part of Seller. This Agreement has been duly executed and delivered by Seller and constitutes, and upon execution each Ancillary Agreement to which Seller is a party will constitute a legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights generally and to general principles of equity.

Section 3.02         Organization, Authority and Qualification of the Company Group. Each member of the Company Group was duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation and has all requisite corporate or limited liability company power and authority to own, operate or lease its properties and assets and to carry on its business as currently conducted in all material respects. Schedule 3.02 of the Disclosure Schedules sets forth each jurisdiction in which the Company Group is licensed or qualified to do business, and each member of the Company Group is duly licensed or qualified to do business and is in good standing in each jurisdiction where such licensing or qualification is required for the conduct of its business as currently conducted in all material respects . All corporate or limited liability company actions required to be taken by the Company Group in connection with the execution and delivery of this Agreement and the Ancillary Documents to which it is a party will be duly authorized on or prior to the Closing. Seller has provided to Buyer copies of the certificate of incorporation, certificate of formation, bylaws, operating agreement or equivalent organizational documents of each member of the Company Group, in each case as amended to date.

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Section 3.03         Capitalization

(a)         Seller owns all of the issued and outstanding Shares and the Membership Interests. The Shares, together with the Common Stock owned by Buyer, represent one hundred percent (100%) of the issued and outstanding Common Stock of the Company, and the Membership Interests represent 100% of the outstanding membership interests of Ponderosa. All of the Shares and the Membership Interests are duly authorized, validly issued, fully paid and non-assessable, and owned of record and beneficially by Seller, free and clear of all Encumbrances, other than the Permitted Encumbrances. Upon consummation of the transactions contemplated by this Agreement, good and valid title to the Shares and the Membership Interests shall be transferred to Buyer, free and clear of all Encumbrances, other than the Permitted Encumbrances. All of the Shares and the Membership Interests were issued in compliance with applicable Laws. None of the Shares or the Membership Interests were issued in violation of any agreement, arrangement or commitment to which Seller or the Company is a party or subject to or in violation of any preemptive or similar rights of any Person.

(b)         Except as set forth on Schedule 3.03 of the Disclosure Schedules, as of the date hereof, there are no outstanding or authorized preferred or other classes of equity or options, warrants, convertible securities or other rights, agreements, arrangements or commitments of any character relating to the capital stock of any member of the Company Group or obligating Seller or any member of the Company Group to issue or sell any capital stock of, or any other interest in, the Company. The Company does not have outstanding or authorized stock appreciation, phantom stock, profit participation or similar rights. Except as set forth in Schedule 3.03 of the Disclosure Schedules, there are no voting trusts, stockholder agreements, proxies or other agreements or understandings in effect with respect to the voting or transfer of any of the Shares or the Membership Interests.

Section 3.04         No Subsidiaries. Neither Fly Flyte, Inc. nor Ponderosa Air, LLC owns or controls, directly or indirectly, any equity or other ownership interest in any Person. Neither the Company nor Ponderosa has any subsidiaries.

Section 3.05         No Conflicts; Consents. Except as set forth on Schedule 3.05, the execution, delivery and performance by Seller of this Agreement and the Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, bylaws or other organizational documents of Seller or any member of the Company Group; (b) conflict with or result in a violation or breach of any provision of any applicable Law or Governmental Order applicable to Seller or any member of the Company Group; (c) require the consent, notice or other action by any Person under, conflict with, result in a material violation or material breach of, constitute a material default or an event that, with or without notice or lapse of time or both, would constitute a material default under, result in the acceleration of or create in any party the right to accelerate, terminate, modify or cancel any Contract to which Seller or any member of the Company Group is a party or by which Seller or any member of the Company Group is bound or to which any of their respective properties and assets are subject (including any Material Contract) or any Permit affecting the properties, assets or business of the Company Group; or (d) result in the creation or imposition of any Encumbrance on any properties or assets of the Company Group, other than Permitted Encumbrances. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Seller, or the Company Group in connection with the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby, except for (i) filings required under applicable securities Laws, and (ii) customary or ministerial notifications to the FAA and/or DOT of a non-substantive nature that do not require acceptance or approval from the FAA and/or DOT or result in operational restriction.

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Section 3.06         Financial Statements. Schedule 3.06 sets forth copies of the Company’s audited financial statements consisting of the consolidated balance sheet of the Company and the related statements of income as of December 31 for the year 2023, and the unaudited financial statements for the fiscal years ended December 31, 2024 and 2025. Except as set forth in Schedule 3.06(a), the Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the periods involved (except that the unaudited Financial Statements are subject to normal year-end adjustments and the absence of footnote disclosures, none of which are expected to be material in amount). The Financial Statements are based on the books and records of the Company, and fairly present, in all material respects, the financial condition of the Company as of the respective dates thereof and the results of the operations of the Company for the periods indicated. The balance sheet of the Company as of December 31, 2025, is referred to herein as the “Base Balance Sheet” and the date thereof as the “Base Balance Sheet Date”.

Section 3.07         Undisclosed Liabilities. Except as set forth on Schedule 3.07, the Company has no liabilities, obligations or commitments (“Liabilities”), except (a) those which are adequately reflected or reserved against in the Base Balance Sheet as of the Base Balance Sheet Date, (b) those which have been incurred in the ordinary course of business consistent with past practice since the Base Balance Sheet Date and which are not, individually or in the aggregate, material in amount, and (c) Transaction Expenses or amounts taken into account as current liabilities.

Section 3.08         Absence of Certain Changes, Events and Conditions. Since the date of the Base Balance Sheet: (a) the Seller has conducted the business, in all material respects, in the ordinary course consistent with past practice up until 12:00 a.m. on February 13, 2026; and (b) no event or development has had or is reasonably likely to have a Material Adverse Effect; provided, however, that from and after February 13, 2026 through the Closing Date (the “Transition Period”), the operating costs and payables of the business were assumed by SEG, and Seller’s involvement during such period has been limited to providing transitional support services pursuant to contractual arrangements intended to facilitate continuity of operations pending Closing. Accordingly, Seller makes no representation or warranty under this clause (b) with respect to operational results, expenses or other matters arising during the Transition Period, other than with respect to Seller’s performance of such transition services in all material respects.

Section 3.09         Material Contracts. Schedule 3.09 lists, as of the date of this Agreement, a complete list of the following Contracts to which any member of the Company Group is a party to or bound by (all such Contracts disclosed or required to be disclosed on ‎Schedule 3.09, and any lease or sublease of Real Property, collectively, the “Material Contracts”); each Material Contract is valid, binding and enforceable, and is in full force and effect, except as limited by the Enforceability Exceptions. No party thereto is in default (with or without notice or lapse of time or both). The Seller has delivered to the Buyer true and complete copies of all Material Contracts, including any amendments thereto:

(a)         any Contract pursuant to which any member of the Company Group purchased, in the aggregate, $25,000 or more of goods or services during the twelve (12)-month period immediately preceding December 31, 2025, excluding any Contract with Luxe flights;

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(b)         any Contract pursuant to which any member of the Company Group sold, in the aggregate, $25,000 or more of goods or services during the twelve (12)-month period immediately preceding December 31, 2025;

(c)         any Contract containing any future capital expenditure obligations of any member of the Company Group in excess of $25,000;

(d)         any Contract for the licensing of Intellectual Property that is: (A) material to the business of the Company Group taken as a whole, or otherwise the loss of which could be material to the Company Group, taken as a whole;

(e)         any Contract concerning the establishment or operation of a joint venture or other legal arrangement with another Person (other than any member of the Company Group) in order to conduct a common venture or enterprise with such Person;^^

(f)         any Contract relating to the acquisition or disposition of any business, assets (other than assets acquired in the ordinary course of business) or capital stock or other equity interests of any Person (whether by merger, sale of stock, sale of assets or otherwise) under which any member of the Company Group has any remaining obligation with respect to an “earn out,” contingent purchase price, deferred purchase price or similar contingent payment obligation or any remaining material indemnification obligations;

(g)         any Contract the express terms of which materially restrict or limit, or purport to materially restrict or limit, the ability of any member of the Company Group to compete in any business or with any Person or in any geographic area or during any period of time, or that materially restricts the right of any member of the Company Group to sell to or purchase from any Person or to hire any Person, or that grants the other party or any third person “most favored nation” status or any type of special discount rights that are material to the Company Group;

(h)         any Contract relating to or evidencing Indebtedness or creating or resulting in any lien on material assets or relating to the issuance of letters of credit, including (A) any agreement or indenture relating to the borrowing of money or to mortgaging, pledging or otherwise placing a lien on all or any portion of the assets of the Company Group, and (B) any guaranty of any obligation for borrowed money or other material guaranty;

(i)         any material Contract for the settlement of any dispute, claim or any administrative or judicial proceedings that contains any material remaining or ongoing obligations on the part of the Company Group;

(j)         any written employment or consulting Contract (other than offer letters providing for at-will employment in the ordinary course of business) (A) providing for annual base compensation in excess of $125,000, or (B) that provides for severance, change-in-control payments, retention bonuses, or other termination-related payments; or

(k)         any Contract that commits any member of the Company Group to enter into any of the foregoing.

Section 3.10         Title to Assets. The Company Group has good and valid title to, or a valid leasehold interest in, all Real Property, personal property and other assets reflected in the Financial Statements or acquired after the Base Balance Sheet Date, other than properties and assets sold or otherwise disposed of in the ordinary course of business consistent with past practice since the Base Balance Sheet Date. All such properties and assets (including leasehold interests) are free and clear of Encumbrances other than the Permitted Encumbrances. No member of the Company Group owns any Real Property.

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Section 3.11         Condition and Sufficiency of Assets. The buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property (“Tangible Property”) of the Company Group are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such Tangible Property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The Tangible Property currently owned or leased by the Company Group, together with all other properties and assets of the Company Group, are sufficient for the continued conduct of the Company Group’s business after the Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights, property and assets necessary to conduct the business of the Company Group as currently conducted.

Section 3.12         Intellectual Property.

(a)         Schedule 3.12 of the Disclosure Schedules contains a correct, current, and complete list of all Company Intellectual Property, if any.

(b)         To Seller’s Knowledge, the conduct of the Company’s business as conducted, including the use of the Company Intellectual Property and Licensed Intellectual Property in connection therewith, and the products, processes and services of the Company Group have not infringed, misappropriated or otherwise violated, and will not infringe, misappropriate or otherwise violate, the Intellectual Property or other rights of any Person. To Seller’s Knowledge, no Person has infringed, misappropriated or otherwise violated any Company Intellectual Property or Licensed Intellectual Property.

(c)         There are no Actions (including any opposition, cancellation, revocation, review, or other proceeding), whether settled, pending, or, to Seller’s Knowledge, threatened (including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, or other violation by the Company Group of the Intellectual Property of any Person; (ii) challenging the validity, enforceability, registrability, patentability, or ownership of any Company Intellectual Property or Licensed Intellectual Property or the Company Group’s right, title, or interest in or to any Company Intellectual Property or Licensed Intellectual Property; or (iii) by the Company Group or by the owner of any Licensed Intellectual Property alleging any infringement, misappropriation, or other violation by any Person of the Company Intellectual Property or such Licensed Intellectual Property. Neither Seller nor any member of the Company Group is aware of any facts or circumstances that could reasonably be expected to give rise to any such Action. No member of the Company Group is subject to any outstanding or prospective Governmental Order (including any motion or petition therefor) that does or could reasonably be expected to restrict or impair the use of any Company Intellectual Property or Licensed Intellectual Property.

Section 3.13         Inventory. The Company Group does not maintain any material inventory of goods for resale, raw materials, or work-in-process (“Inventory”). Any inventory maintained by the Company Group consists solely of de minimis office supplies, promotional materials, or similar incidental items used in the ordinary course of business. Such inventory is owned by the Company Group free and clear of Encumbrances other than Permitted Encumbrances and is maintained in quantities consistent with the current operations of the business.

Section 3.14         Accounts Receivable. The accounts receivable reflected on the Base Balance Sheet and the accounts receivable arising after the date thereof through the date hereof (a) arose from bona fide transactions entered into by the Company Group in the ordinary course of business consistent with past practice; (b) are not subject to any material written dispute or claim of set-off, other than ordinary-course billing adjustments and customary credits; and (c) with respect to the accounts receivable reflected on the Base Balance Sheet, such accounts receivable are reflected in a manner consistent with past practices of no Accounts Receivable existing more than forty-five (45) days past due (such accounts receivable, “Accounts Receivable”).

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Section 3.15         Insurance and Bonding. Schedule 3.15 of the Disclosure Schedules sets forth a list of all current insurance policies maintained by the Company Group (collectively, the “Insurance Policies”) and true and complete copies of such Insurance Policies have been made available to Buyer. Such Insurance Policies are in full force and effect and shall remain in full force and effect following the consummation of the transactions contemplated by this Agreement, and the consummation of the transactions contemplated hereby will not require the consent of any insurer and will not result in any cancellation, lapse, or material modification of coverage under any of the Insurance Policies. No member of the Company Group nor any of their respective Affiliates have received any written notice of cancellation of, premium increase with respect to, or alteration of coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if due and payable prior to Closing, will be paid prior to Closing in accordance with the payment terms of each Insurance Policy. All such Insurance Policies (a) are valid and binding in accordance with their terms; (b) are provided by carriers who are financially solvent; and (c) have not been subject to any lapse in coverage. Except as set forth on the Disclosure Schedules, there are no pending written claims under any Insurance Policy as to which coverage has been formally questioned, denied or disputed in writing or for which there is an outstanding reservation of rights. No member of the Company Group is in default under, or has otherwise failed to comply with, in any material respect, any Insurance Policy. The Company Group maintains insurance coverage in compliance with 14 C.F.R. § 205.5(c) (and has met the filing requirements of 14 C.F.R. § 205.4) and such other insurance that Seller believes is customary for similarly situated aviation businesses of comparable size and stage of operations as currently conducted.

Section 3.16         Legal Proceedings; Governmental Orders.

(a)         Except as set forth on Schedule 3.16 of the Disclosure Schedules, there are no Actions pending or, to the Seller’s Knowledge, threatened (a) against or by any member of the Company Group affecting any of its properties or assets (or by or against Seller or any Affiliate thereof and relating to the Company Group); or (b) against or by any member of the Company Group, Seller or any Affiliate of Seller that challenges or seeks to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. To Seller’s Knowledge, no event has occurred or circumstances exist that may give rise to, or serve as a basis for, any such Action.

(b)         There are no outstanding Governmental Orders and no unsatisfied judgments, penalties or awards against or affecting any member of the Company Group, or any of its properties or assets, except as set forth on the Disclosure Schedules.

Section 3.17         Compliance With Laws; Permits.

(a)         Each member of the Company Group is in compliance, in all material respects, with all Laws applicable to it or its business, properties or assets.

(b)         All Permits required for the Company Group to conduct its business have been obtained by it and are valid and in full force and effect, including, but not limited to, the Certificate. All fees and charges with respect to such Permits as of the date hereof have been paid in full. Schedule 3.17(b) of the Disclosure Schedules lists all current Permits issued to the Company Group, including the names of the Permits and their respective dates of issuance and expiration. No event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of any Permit set forth in Schedule 3.17(b) of the Disclosure Schedules.

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Section 3.18         Employee Benefit Matters.

(a)         Except as set forth on Schedule 3.18(a), there are no current employment or consulting Contracts by which any member of the Company Group is bound other than offer letters providing for at-will employment in the ordinary course of business, and no deferred compensation, bonus, incentive compensation, stock option, severance or termination pay agreement or plan or any other employee benefit plan, agreement, arrangement or commitment, whether formal or informal, maintained, entered into or contributed to, or which is required to be maintained, entered into or contributed to, by the Seller for the benefit of any current or former employee, officer or director of the business, or with respect to which the Seller has any liability, contingent or otherwise, in connection with the business (collectively, “Benefit Plans”) other than liabilities arising in the ordinary course of business consistent with past practice and that are not material in amount. Except as set forth on Schedule 3.18(a), none of the Benefit Plans is a multiemployer plan (as defined in Section 3(37) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)), is subject to Title IV of ERISA or Section 412 of the Internal Revenue Code of 1986, as amended (the “Code”), or provides post-employment welfare benefits (except to the extent required by Section 4980B of the Code). All of the Benefit Plans currently comply, and have complied in the past, both as to form and operation, with the terms of such Benefit Plans and with the applicable provisions of ERISA, the Code and other applicable Law.

(b)         Each individual who is classified by any member of the Company Group as an independent contractor has been properly classified for purposes of participation and benefit accrual under each Benefit Plan.

Section 3.19         Employment Matters.  No member of the Company Group is a party to any contract or collective bargaining agreement with any labor organization that pertains to any employees, officers or directors of the business. No organization or representation question, labor dispute or unfair labor practice or complaint is pending or, to Seller’s Knowledge, has been threatened in writing in connection with the business in the past three (3) years. Nothing herein shall be construed as an obligation of the Company Group to continue the employment of any employee, officer or director of the business or otherwise to assume any pre-Closing Liability for salary, benefits, pension or other benefit plans relating thereto, except to the extent required by applicable Law.

Section 3.20         Taxes.

(a)         All Tax Returns required to be filed on or before the Closing Date by each member of the Company Group have been, or will be, timely filed (taking into account any valid extensions), other than the 2024 federal and applicable state income Tax Returns, which are currently pending completion of the Company’s 2024 audit and are expected to be filed promptly following completion of such audit, as disclosed on the Disclosure Schedules. Such Tax Returns are true, complete and correct in all material respects. All Taxes due and owing by any member of the Company Group (whether or not shown on any Tax Return) have been timely paid in all material respects, other than (i) Taxes not yet due and payable, and (ii) amounts disclosed on Schedule 5.08 (including Federal Excise Taxes and Segment Fees) and the Disclosure Schedules.

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(b)         Each member of the Company Group has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions of applicable Law, in all material respects.

(c)         No claim has been made by any taxing authority in any jurisdiction where the Company Group does not file Tax Returns that it is, or may be, subject to Tax by that jurisdiction.

(d)         No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of the Company Group, other than customary extensions obtained in the ordinary course of business.

(e)         All deficiencies asserted, or assessments made, against the Company Group as a result of any examinations by any taxing authority have been fully paid, settled, reserved against, or are being contested in good faith except as set forth on the Disclosure Schedules.

(f)         No member of the Company Group is a party to any Action by any taxing authority. There is no pending or, to Seller’s Knowledge, threatened Actions by any taxing authority, except as disclosed on the Disclosure Schedules.

(g)         Seller has made available to Buyer copies of all federal, state, local and foreign income, franchise and similar Tax Returns, examination reports, and statements of deficiencies assessed against, or agreed to by, the Company Group for all Tax periods ending after December 31, 2024, other than the 2024 income Tax Returns, which have not yet been filed as described above.

(h)         There are no Encumbrances for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Company Group, other than Permitted Encumbrances and amounts disclosed on Schedule 5.08 and the Disclosure Schedules.

(i)         The unpaid Taxes of the Company Group (i) did not, as of the most recent fiscal month end, exceed the reserve for Tax Liability (rather than any reserve for deferred Taxes established to reflect timing differences between book and tax income) set forth on the fact of the most recent balance sheet and (ii) do not exceed that reserve as adjusted for the passage of time through the Closing Date in accordance with the past custom and practice of the Company filing their Tax Returns.

(j)         The Company Group is not a party to, or bound by, any Tax indemnity, Tax sharing or Tax allocation agreement.

(k)         The Company Group has not been a member of an affiliated group filing a consolidated federal income Tax Return and has no liability for the Taxes of any person under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or non-U.S. law), as a transferee or successor, by contract, or otherwise.

(l)         The Company Group has not distributed stock of another person, or had its stock distributed by another person, in a transaction that was purported or intended to be governed in whole or in part by Code Section 355 or Code Section 361.

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Section 3.21         Environmental Matters.

(a)         (i) Neither Seller nor any member of the Company Group has engaged in or permitted any operation or activity at or upon, or any use or occupancy of, any Real Property for the purpose of manufacturing, generating, handling, storing, transferring, treating or disposing of, or in any way involving release of, any Hazardous Materials on, under, in or about any Real Property; (ii) to Seller’s Knowledge, no Hazardous Materials have been released on, into, upon or about any Real Property, and no Hazardous Materials have migrated from or to any adjacent properties during the Company Group’s use or occupancy of any such Real Property; (iii) to Seller’s Knowledge, Seller has not received any notices, requests for information, claims, subpoenas or summons from any person that allege any violation by any member of the Company Group of Environmental Law or Environmental Permits, whether or not corrected, or any Environmental Liabilities of any member of the Company Group since the Flewber Acquisition Date; (iv) to Seller’s Knowledge, there are no pending or threatened Actions against any member of the Company Group or any of its respective predecessors in interest and there exists no basis for any Action, involving any member of the Company Group, the Seller or the Real Property, related to either any violation or alleged violation of Environmental Law, whether or not corrected, or any Environmental Liabilities since the Flewber Acquisition Date; (v) to Seller’s Knowledge, all Real Property and all current activities and operations during the Company Group’s occupancy of any such Real Property comply with all Environmental Laws; (vi) the Company Group has obtained all Permits, licenses, registrations, certificates, approvals and other authorizations required pursuant to Environmental Law (“Environmental Permits”); (vii) all such Environmental Permits are in full force and effect; and the Seller has not received any notice regarding the revocation, suspension or amendment of any Environmental Permit; and (viii) the Seller has supplied the Buyer with true and complete copies of all notices, reports (including Phase I and Phase II environmental site assessments) and other documents received by the Seller or in the Seller’s possession since the Flewber Acquisition Date relating to (A) any environmental conditions at any facility or real property ever owned, operated or leased by or on behalf of the Company Group or any of its respective predecessors in interest, (B) the Company Group’s compliance with Environmental Law or Environmental Permits or (C) any Environmental Liability of the Company Group or any of its respective predecessors-in-interest

(b)         For the purposes of this Agreement: (i) “Environmental Liabilities” means all fees (including, but not limited to, attorneys’ and consultants’ fees), costs and expenses (including, but not limited to, costs of investigation, monitoring and cleanup), fines, penalties, judgments, settlements and liabilities, whether accrued, fixed or contingent, known or unknown, and whether or not included in a schedule to this Agreement since the Flewber Acquisition Date, any of which are incurred at any time arising out of, based on or resulting from (A) the presence or Release of Hazardous Materials into the environment, on or prior to the Closing Date, upon, beneath, or from any Real Property or other location (whether or not owned or operated by the Seller at the time such Hazardous Materials were present or released) where the Seller conducted operations or generated, stored, released, sent, transported, or disposed or arranged for the disposal of Hazardous Materials, (B) human exposure to Hazardous Materials or (C) any violation of Environmental Law by the Seller on or prior to the Closing; (ii) “Hazardous Materials” means any substance, material, chemical or waste that is defined, classified or regulated as a “hazardous waste,” “hazardous substance,” “toxic substance,” “pollutant” or “contaminant” under any Environmental Law, including but not limited to gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls, asbestos, lead or urea formaldehyde foam insulation, the presence of which requires reporting, investigation, monitoring, maintenance, removal, abatement, mitigation or Remediation under any Environmental Law or which causes or threatens to cause a nuisance, trespass or other tortious condition or poses a hazard to human health and safety or the environment; (iii) “Environmental Law” means all Laws (including common law), statutes, regulations, rules, policy, guidance, ordinances, codes, orders, approvals and similar items, of all Governmental Authorities and all judicial and administrative and regulatory writs, injunctions, decrees, judgments and orders relating to (A) occupational health or safety; (B) the protection of human health, natural resources or the environment; (C) the treatment, storage, disposal, handling or Release of Hazardous Materials or Remediation of Releases; or (D) exposure of persons to Hazardous Materials; (iv) “Remediation” means (A) any remedial action, remedy, response or removal action as those terms are defined in 42 U.S.C. § 9601, (B) any corrective action as that term has been construed pursuant to 42 U.S.C. § 6924, and (C) any measures or actions required or undertaken to investigate, assess, evaluate, monitor, or otherwise delineate the presence or Release of any Hazardous Material in or into the environment or to prevent, clean up or minimize a Release or threatened release of Hazardous Materials; and (v) “Release” means any spilling, leaking, pumping, emitting, emptying, pouring, discharging, depositing, injecting, escaping, leaching, migrating, dumping, or disposing (including the abandonment or discarding of barrels, containers or other receptacles containing Hazardous Materials) into the environment.

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Section 3.22         Related Party Interests and Transactions. Except as provided in this Agreement or set forth on the Disclosure Schedules (including, for the avoidance of doubt, (x) the Promissory Note, dated as of February 27, 2025, with the original principal amount equal to $365,000 payable by the Company to Marc Sellouk, and (y) the $23,586 American Express balance incurred by Marc Sellouk in connection with Company expenses, each of which constitutes an Assumed Liability, (i) to Seller’s Knowledge, there is no material agreement, arrangement or understanding between Seller, any of Seller’s Affiliates (other than the Company Group), or any of their respective officers or directors (each, including Seller, a “Related Party”), on the one hand, and any member of the Company Group, on the other hand, nor any material advances or other material amounts owing to or from the Company Group by or to any Related Party, other than in the ordinary course of business consistent with past practice, and (ii) to Seller’s Knowledge, no Related Party (a) owns any interest in any property, assets or rights used in the business of the Company Group, (b) is engaged in any business dealings or transactions with the Company Group other than in the ordinary course of business at prevailing market terms, or (c) is or has been employed by any member of the Company Group.

Section 3.23         No FAA or DOT Enforcement or Investigations. Except as set forth on Schedule 3.23, to Seller’s Knowledge, no member of the Company Group is subject to any pending enforcement action, civil penalty, administrative proceeding, Notice of Investigation (“NOI”), Letter of Investigation (“LOI”), emergency order, or certificate action (including suspension, limitation, amendment or revocation) issued by the FAA or DOT. To Seller’s Knowledge, no such written enforcement action has been initiated or threatened in writing during the past three (3) years. Seller makes no representation with respect to routine FAA or DOT oversight, surveillance activities, informal communications, or matters resolved in the ordinary course of business without material penalty. Seller further represents that it has not received written notice of any facts or circumstances that would reasonably be expected to result in a material FAA or DOT enforcement action.

Section 3.24         No Open FAA or DOT Findings; Surveillance Matters. Except as set forth on Schedule 3.24, to Seller’s Knowledge, the Company Group has not received any written notice of unresolved FAA or DOT findings or corrective action plans that remain open and that would reasonably be expected to result in a material enforcement action or material operational restriction. Seller makes no representation with respect to routine surveillance activities, informal findings, or matters addressed in the ordinary course of business.

Section 3.25         Management Personnel Compliance; Notifications (14 C.F.R. Part 119). To Seller’s Knowledge, all management positions required under 14 C.F.R. Part 119, including Director of Operations, Chief Pilot, Director of Maintenance, and any other required management personnel, are duly filled by individuals who meet the applicable qualification and experience requirements in all material respects. To Seller’s Knowledge, all material notifications and filings required to be made to the FAA with respect to such management personnel have been made in all material respects. To Seller’s Knowledge, there is no pending or threatened in writing FAA action to disqualify or remove any such individual that would reasonably be expected to result in a material operational restriction. Seller makes no representation with respect to routine FAA communications or informal correspondence.

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Section 3.26         Operations Specifications. Ponderosa’s Operations Specifications (“OpSpecs”) are to Seller’s Knowledge, valid and in full force and effect in all material respects. To Seller’s Knowledge, the Company Group has not received written notice of any pending amendment, suspension or material limitation of the OpSpecs that would reasonably be expected to materially restrict the Company Group’s current operations. Seller makes no representation with respect to routine updates, administrative revisions, or informal FAA communications.

Section 3.27         Aircraft Airworthiness and Maintenance. Each aircraft operated, leased, or managed by the Company Group is, to Seller’s Knowledge, airworthy and maintained in compliance with all material respects with applicable FAA regulations and approved maintenance programs; provided, however, that the Company Group has entered into a lease agreement with respect to Vision Jet N696MR, which aircraft is currently undergoing conformity and is not yet operational. To Seller’s Knowledge, all required inspections for operational aircraft are current in all material respects, all applicable airworthiness directives have been complied with in all material respects, and no operational aircraft is subject to deferred maintenance beyond applicable Minimum Equipment List limits, except as permitted thereunder. Maintenance and airworthiness records are maintained in the ordinary course of business consistent with industry practice. To Seller’s Knowledge, no aircraft is subject to any material maintenance, mechanic’s, or similar lien, other than Permitted Encumbrances.

Section 3.28         No NTSB Investigations. To Seller’s Knowledge, the Company Group has not received written notice of any pending investigation by the National Transportation Safety Board involving the Company Group that would reasonably be expected to result in a material enforcement action or material operational restriction. Seller makes no representation with respect to routine incident reporting or informal inquiries.

Section 3.29         No Required Regulatory Approvals; Change in Control. To Seller’s Knowledge, the transactions contemplated by this Agreement do not require a transfer or reissuance of the Company Group’s existing DOT air taxi approval, FAA certificates or operating authority. Except for customary notifications to the FAA and DOT, and any other filings required by applicable Law, Seller has not received written notice that any approval, consent or determination of fitness is required in connection with the transactions contemplated hereby. Following the Closing, the Company Group intends to continue operations under its existing DOT air taxi approval, FAA certificates and OpSpecs, subject to applicable Law and FAA and DOT oversight. Seller has not received written notice from the FAA or DOT asserting that the transactions contemplated hereby will require reissuance of certificates or result in a material operational restriction.

Section 3.30         Aircraft Leases; Aviation Contracts. To Seller’s Knowledge, the consummation of the transactions contemplated hereby will not result in a material default under any material aircraft lease, dry lease, wet lease, aircraft management agreement, hangar lease, or other material aviation-related contract, except for any consent requirements disclosed on the Disclosure Schedules or where any such default would not reasonably be expected to result in a Material Adverse Effect.

Section 3.31         Aviation Insurance. The Company Group maintains all aviation insurance required by applicable Law, OpSpecs, and material contracts in all material respects. All premiums with respect to such policies are current and paid in full in all material respects, and the Company Group has not received any written notice of cancellation, nonrenewal, or material modification. To Seller’s Knowledge, the consummation of the transactions contemplated hereby does not require insurer consent, other than customary notices, and Seller has not received written notice that such transactions will result in cancellation or material reduction in coverage. Seller makes no representation with respect to future premium adjustments or underwriting determinations made after Closing.

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Section 3.32         Pilot and Crew Labor Matters. To Seller’s Knowledge, there are no pending or threatened in writing material claims or investigations alleging misclassification of pilots or flight crew, and no pending material wage disputes involving pilots or flight crew. To Seller’s Knowledge, there is no current union organizing activity, collective bargaining agreement, labor dispute, strike, slowdown, or work stoppage involving the Company Group. Seller makes no representation with respect to matters arising after the date hereof.

Section 3.33         Brokers. Except as set forth on the Disclosure Schedules (including Majar Advisors, LLC, which is engaged pursuant to a monthly retainer consulting arrangement and may be eligible for a discretionary cash bonus as determined solely by Seller), no broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any other Ancillary Document based upon arrangements made by or on behalf of Seller. Any such discretionary bonus shall be paid solely by Seller and shall not constitute a liability of the Company Group or Buyer.

Section 3.34         Disclosure. None of the representations or warranties of Seller contained in this Agreement or any Ancillary Agreement and none of the information contained in any schedule, certificate, or other document delivered by or on behalf of Seller pursuant hereto or thereto or in connection with the transactions contemplated hereby or thereby contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements herein or therein not misleading.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller that the statements contained in this ARTICLE IV are true and correct as of the date hereof.

Section 4.01         Organization and Authority of Buyer. Buyer is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware. Buyer has full corporate power and authority to enter into this Agreement and the Ancillary Documents to which Buyer is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of this Agreement and any Ancillary Document to which Buyer is a party, the performance by Buyer of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation of Buyer enforceable against Buyer in accordance with its terms, except as limited by the Enforceability Exceptions. When each Ancillary Document to which Buyer is or will be a party has been duly executed and delivered by Buyer (assuming due authorization, execution and delivery by each other party thereto), such Ancillary Document will constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms, except as limited by the Enforceability Exceptions. Buyer acknowledges that stockholder approval may be required under applicable Law or stock exchange rules in connection with the issuance of the Preferred Shares contemplated hereby. Buyer represents that its Board of Directors has duly authorized the execution, delivery and performance of this Agreement and the issuance of the Preferred Shares. Buyer shall use commercially reasonable efforts to obtain any such required stockholder approval promptly following the Closing. The failure to obtain such stockholder approval shall not relieve Buyer of its obligations under this Agreement or the Note, including the obligation to pay the Purchase Price in full. Buyer is not insolvent and, after giving effect to the transactions contemplated hereby, will not be insolvent, will be able to pay its debts as they become due, and will have adequate capital to carry on its business.

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Section 4.02         No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the governing documents of Buyer; (b) conflict with or result in a material violation or material breach of any provision of any Law or Governmental Order applicable to Buyer; or (c) require the consent, notice or other action by any Person under any Contract to which Buyer is a party. No consent, approval, Permit, Governmental Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer in connection with the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby.

Section 4.03         Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf of Buyer.

Section 4.04         Litigation. Buyer is not a party (including by reason of any crossclaim or counterclaim) to any Action, nor to the knowledge of Buyer, is anyone asserting or threatening to make Buyer a party to any such Action, that challenges or seeks to prevent, enjoin or otherwise delay the consummation of the transaction set forth herein.

Section 4.05         Investment Intent. Buyer is acquiring the Shares and the Membership Interests for its own account for investment purposes only and not with a view to any public distribution thereof or with any intention of selling, distributing or otherwise disposing of the Shares or the Membership Interests in a manner that would violate the registration requirements of the Securities Act of 1933, as amended.

ARTICLE V

COVENANTS

Section 5.01         Confidentiality. From and after the Closing, Seller shall, and shall cause its Affiliates to, hold, and shall use its commercially reasonable efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written or oral, concerning the Company Group, except to the extent that Seller can show that such information (a) is generally available to and known by the public through no fault of Seller, any of its Affiliates or their respective Representatives; or (b) is lawfully acquired by Seller, any of its Affiliates or their respective Representatives from and after the Closing from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation. If Seller or any of its Affiliates or their respective Representatives are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Seller shall promptly notify Buyer in writing and shall disclose only that portion of such information which Seller is advised by its counsel in writing is legally required to be disclosed, provided that Seller shall use commercially reasonable efforts to obtain an appropriate protective order or other reasonable assurance that confidential treatment will be accorded such information.

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Section 5.02         Non-Competition; Non-Solicitation.

(a)         For a period of two (2) years commencing on the Closing Date (the “Restricted Period”), Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory; (ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) intentionally interfere in any material respect with the business relationships (whether formed prior to or after the date of this Agreement) between any member of the Company Group and customers or suppliers of the Company Group.

(b)         During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit for employment in the Restricted Business any then-current executive-level or management employee of the Company Group with whom Seller had material contact during the twelve (12) months prior to the Closing or encourage any such employee to leave such employment, except pursuant to a general solicitation which is not directed specifically to any such employees. For the avoidance of doubt, this Section shall not prohibit (i) the hiring of any employee who responds to a general advertisement not targeted at such employee, (ii) the hiring of any employee whose employment has been terminated by Buyer or the Company Group, or (iii) the hiring of any employee who has not been employed by the Company Group for at least six (6) months.

(c)         During the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, solicit or entice, or attempt to solicit or entice, any client or customer of the Company Group with whom Seller had business contact during the twelve (12) months prior to the Closing, for purposes of diverting their business in the Restricted Business within the Territory or services from the Company Group. Nothing herein shall prohibit Seller or its Affiliates from engaging in any business that is not the Restricted Business, including providing services unrelated to any FAA Part 135 air carrier operation.

(d)         Seller acknowledges that a breach or threatened breach of this Section 5.02 would give rise to irreparable harm to Buyer, for which monetary damages may not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction; provided, however, that nothing herein shall limit a court’s discretion to require the posting of a bond or other security in accordance with applicable Law.

(e)         Seller acknowledges that the restrictions contained in this Section 5.02 are intended by the parties to be reasonable and necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section 5.02 should ever be adjudicated to exceed the time, geographic, product or service, or other limitations permitted by applicable Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or service, or other limitations permitted by applicable Law. The covenants contained in this Section 5.02 and each provision hereof are severable and distinct covenants and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction.

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Section 5.03         Governmental Approvals and Consents.

(a)         Each party hereto shall, as promptly as possible, (i) make, or cause or be made, all filings and submissions required under any Law applicable to such party or any of its Affiliates; and (ii) use commercially reasonable efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities that may be or become necessary for its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the Ancillary Documents. Each party shall cooperate in good faith and in a commercially reasonable manner with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals; provided, however, that nothing herein shall require Seller to incur any material out-of-pocket expense, commence litigation, or agree to any material restriction, divestiture, or modification of its rights or obligations. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals. Except as otherwise expressly set forth herein, each party shall bear its own costs and expenses incurred in connection with obtaining such consents, authorizations, orders and approvals.

(b)         Seller shall use commercially reasonable efforts to give all notices to, and obtain all consents from, all Persons that are described in Schedule 3.05; provided that Seller shall not be required to incur any material out-of-pocket expense or commence litigation in connection therewith.

(c)         If any consent, approval or authorization necessary to preserve any right or benefit under any Contract to which any member of the Company Group is a party is not obtained prior to the Closing, Seller shall, subsequent to the Closing, cooperate in good faith and in a commercially reasonable manner with Buyer and the Company in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable; provided that Seller shall not be required to incur any material out-of-pocket expense, commence litigation, or agree to any material modification of its rights or obligations. If such consent, approval or authorization cannot be obtained, Seller shall use its commercially reasonable efforts to provide the Company Group with the rights and benefits of the affected Contract for the term thereof, solely to the extent such arrangement is legally permissible and does not expose Seller to material liability, and, if Seller provides such rights and benefits, the Company Group shall assume all obligations and burdens thereunder and, if Seller provides such rights and benefits, the Company Group shall assume all obligations and burdens thereunder.

Section 5.04         Public Announcements. Unless otherwise required by applicable Law (based upon the reasonable advice of counsel), no party to this Agreement shall, and each party to this Agreement shall cause its Representatives not to, make any public announcements in respect of this Agreement or the transactions contemplated hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent may be withheld in such other party’s sole discretion), and the parties shall cooperate as to the timing and contents of any such announcement.

Section 5.05         Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates to, execute, and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

Section 5.06         Pre-Closing Distributions. Seller shall cause each member of the Company Group to distribute all of the Personal Property set forth on Schedule 1.1 prior to the Closing. For the avoidance of doubt, Seller-owned software currently used in operations of the Company Group as set forth on Schedule 1.1 (the “Shared Software”) hereto shall not be required to be transferred to the Company Group at Closing. The Seller shall permit each member of the Company Group to continue to use such Shared Software during until such software is replaced, which shall not exceed May 1, 2026.

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Section 5.07         Books and Records. Buyer shall cause each member of the Company Group to provide access to the books and records of the Company Group, Seller and their Representatives, for reasonable business purposes related to compliance with this Agreement or the payment of Taxes, at all reasonable times during normal business hours, for a six (6) year period after the Closing Date, as reasonably requested by Seller. The right of access includes the right to make extracts or copies.

Section 5.08         Assumed Liabilities. Effective as of the Closing, Buyer hereby expressly assumes and agrees to pay, perform, and discharge when due the liabilities and obligations of the Company specifically set forth on Schedule 5.08 attached hereto (the “Assumed Liabilities”); provided, however, that the aggregate amount required to be paid, performed, or discharged by Buyer with respect to the Assumed Liabilities shall not exceed the amount set forth on Schedule 5.08 (the “Assumption Cap”). For the avoidance of doubt, the Assumed Liabilities shall not include any liabilities arising from DOT or FAA enforcement actions, certificate actions, civil penalties, compliance remediation, or operational restrictions based on facts or circumstances occurring on or prior to the Closing Date.

Section 5.09         Shareholder Approval. Following the Closing, Buyer shall use its reasonable best efforts to submit the issuance of the Preferred Shares and the shares of common stock of Buyer into which the Preferred Shares are convertible for approval of its shareholders as required under applicable Law, the NYSE rules and regulations and Buyer’s organizational documents. The obligations of Buyer hereunder remain subject in all respects to the officers’ and board of directors’ compliance with their fiduciary duties under applicable Laws.

ARTICLE VI

TAX MATTERS

Section 6.01         Tax Covenants.

(a)         Without the prior written consent of Buyer, Seller (and prior to the Closing Date, the Company Group, its Affiliates and their respective Representatives) solely with respect to the Company Group, shall not make, change or rescind any Tax election, amend any Tax Return or take any position on any Tax Return, take any action, omit to take any action or enter into any other transaction outside the ordinary course of business that would have the effect of increasing the Tax Liability or reducing any Tax asset of Buyer, or the Company Group in respect of any Post-Closing Tax Period. For the avoidance of doubt, this Section 6.01(a) shall not apply to, limit or restrict Seller’s authority with respect to Tax Returns or Tax matters for the taxable year ending December 31, 2024, which shall remain subject to Section 6.01(c).

(b)         All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees (including any penalties and interest) incurred in connection with this Agreement and the Ancillary Documents (including any real property transfer Tax and any other similar Tax) (collectively, “Transfer Taxes”) shall be borne 50% by Buyer and 50% by the Seller when due; provided, however, that any such Taxes arising as a result of Buyer’s financing arrangements, post-Closing restructuring, or actions taken by Buyer shall be borne solely by Buyer. Buyer will timely file all Tax Returns required to be filed in connection with such Transfer Taxes (unless Seller is legally required to file such Tax Returns) and shall provide Seller with reasonable evidence of such filings and payments upon request. Buyer shall be responsible for any penalties or interest resulting from its failure to timely file or pay such Transfer Taxes.

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(c)         Seller shall prepare and file, or cause to be prepared and filed, at Seller’s expense, all Tax Returns of the Company Group for the taxable year ending December 31, 2024. Seller shall prepare, or cause to be prepared, at Seller’s expense, all Tax Returns required to be filed by each member of the Company Group for the taxable year ending December 31, 2025, and Buyer shall cause the Company Group to timely file such Tax Returns. Buyer shall prepare, or cause to be prepared, all Tax Return required to be filed by each member of the Company Group for all taxable periods beginning on or after January 1, 2026. Buyer shall, and shall cause the Company Group to, provide Seller and Seller’s accountants reasonable access to books, records, workpapers, and personnel, and execute and deliver such powers of attorney and signature authorizations as may be reasonably necessary to permit Seller to prepare and file the 2024 Tax Returns. Any Tax Return for the 2024 and 2025 taxable years shall be prepared in a manner consistent with past practice (unless otherwise required by Law) and without a change of any election or accounting method, and shall not take any position inconsistent with past practice that would reasonably be expected to increase Seller’s liability. To the extent Seller has any indemnification exposure with respect to the 2024 or 2025 taxable year, Buyer shall provide Seller with a draft of any amendment to a 2024 or 2025 Tax Return at least forty-five (45) days prior to filing, and Seller shall have fifteen (15) days to review and comment thereon, which comments shall not be unreasonably rejected. No amendment to any 2024 or 2025 Tax Return (or other Tax Return for a taxable period ending on or before December 31, 2025) shall be filed without Seller’s prior written consent, which may not be unreasonably withheld. Buyer shall have sole responsibility for preparing, filing, and paying all Taxes attributable to the 2026 taxable year and all subsequent taxable periods, including any Taxes arising from or attributable to the transactions contemplated by this Agreement (except Transfer Taxes which shall be governed by Section 6.01(b)), and Seller shall have no liability for any Taxes attributable to such periods, except to the extent expressly set forth in this Agreement.

Section 6.02         Straddle Period. In the case of Taxes that are payable with respect to a taxable period that begins before and ends after the Closing Date (each such period, a “Straddle Period”), the portion of any such Taxes that are treated as Pre-Closing Taxes for purposes of this Agreement shall be paid by Seller and:

(a)         in the case of Taxes (i) based upon, or related to, income, receipts, profits, wages, capital or net worth, (ii) imposed in connection with the sale, transfer or assignment of property, or (iii) required to be withheld, deemed equal to the amount which would be payable if the taxable year ended with the Closing Date; and

(b)         in the case of other Taxes, deemed to be the amount of such Taxes for the entire period multiplied by a fraction the numerator of which is the number of days in the period ending on the Closing Date and the denominator of which is the number of days in the entire period.

Section 6.03         Cooperation and Exchange of Information. Seller and Buyer shall provide each other with such cooperation and information as either of them reasonably may request of the other in filing any Tax Return pursuant to this ARTICLE VI or in connection with any audit or other proceeding in respect of Taxes of the Company Group. Such cooperation and information shall include providing copies of relevant Tax Returns or portions thereof, together with accompanying schedules, related work papers and documents relating to rulings or other determinations by tax authorities; provided, however, that neither party shall be required to waive any attorney-client privilege, work product protection, or other applicable privilege. Each of Seller and Buyer shall retain all Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of the Company Group for any taxable period beginning before the Closing Date until the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate, without regard to extensions except to the extent notified by the other party in writing of such extensions for the respective Tax periods. Prior to transferring, destroying or discarding any Tax Returns, schedules and work papers, records and other documents in its possession relating to Tax matters of the Company Group for any taxable period beginning before the Closing Date, Seller or Buyer (as the case may be) shall provide the other party with reasonable written notice and offer the other party the opportunity to take custody of such materials.

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Section 6.04         Tax Treatment of Indemnification Payments. Any indemnification payments pursuant to this ARTICLE VI shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law, and the parties shall report such payments consistently for all applicable Tax purposes.

Section 6.05         Payments to Buyer. Any amounts payable to Buyer pursuant to this ARTICLE VI shall be satisfied from Seller by wire transfer of immediately available funds within ten (10) Business Days after such amount has been finally determined and is no longer subject to dispute. Any amounts payable to Seller pursuant to this ARTICLE VI shall likewise be paid by wire transfer of immediately available funds within ten (10) Business Days after such amount has been finally determined and is no longer subject to dispute. No party shall be required to make any payment under this ARTICLE VI until the underlying liability has been finally determined pursuant to the procedures set forth herein.

Section 6.06         Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of Section 3.20 and this ARTICLE VI shall survive for the full period of all applicable statutes of limitations plus one hundred and twenty (120) days; provided, that, Seller shall not be responsible for any extension of the statute of limitations agreed to by Buyer without Seller’s prior written consent.

Section 6.07         Tax Proceedings. **** In the event of any Action relating to Taxes or Tax Returns (a “Tax Proceeding”) with respect to any taxable year ending December 31, 2024 or December 31, 2025 which could result in an indemnification obligation of Seller pursuant to this Agreement, Buyer shall promptly provide notice to Seller of such Tax Proceeding; provided, however, that Buyer’s failure to provide such notice to Seller shall not affect any parties rights hereunder unless and to the extent such failure materially prejudices the Seller’s ability to defend itself in a matter related thereto. Seller will have the right to control, at its sole expense, the conduct of any such Tax Proceeding with counsel of its choice so long as Seller notifies Buyer in writing, within fifteen (15) Business Days of receipt by Seller of the notice contemplated above, of Seller’s intent to assume the control of the conduct of any such Tax Proceeding. If Seller has exercised his or her right to assume such control, Buyer may, in its sole discretion and at its expense, employ counsel to represent it (in addition to counsel employed by Seller) in any such matter, and in such event counsel selected by Seller shall be required to cooperate with such counsel of Buyer in such defense, compromise or settlement; provided that Seller shall not be responsible for the fees or expenses of any separate counsel retained by Buyer. If Seller is conducting any Tax Proceeding in accordance with this Section, (i) Buyer will not consent to the entry of any judgment or enter into any settlement with respect to the Tax Proceeding, nor take any voluntary action prejudicial to the determination of the Tax Proceeding, without the prior written consent of Seller (such consent not to be unreasonably withheld, conditioned or delayed) and (ii) Seller will not consent to the entry of any judgment or enter into any settlement with respect to the Tax Proceeding without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed.

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Section 6.08         Transaction Tax Deductions. Any and all deductions related to (i) expenses incurred by the Company Group with respect to Indebtedness being paid in connection with the Closing, and (ii) all transaction expenses and payments that are deductible for Tax purposes, including Transaction Expenses and other fees and expenses of legal counsel, accountants, and investment bankers (such deductions described in clauses (i) and (ii), the “Transaction Tax Deductions”) shall to the fullest extent permitted by applicable Law, be treated as attributable to and shall be claimed in a taxable period (or portion of the Straddle Period) ending on or prior to the Closing Date, except as otherwise required by applicable Law. Buyer shall not take any position inconsistent with the foregoing allocation unless required by a final “more likely than not” determination under applicable Law and only after prior written notice to Seller and good faith consultation with Seller. To the extent it is established in accordance with the procedures set forth in this Section 6.09 that any Transaction Tax Deduction does not accrue to the Seller and results in a reduction of the federal, state or local income, franchise or similar Taxes of the Company Group, Buyer or any Affiliate or successor thereof for any taxable year or period beginning after the Closing Date or for the portion of any Straddle Period that begins after the Closing Date (each such reduction, a “Tax Reduction”), then Buyer shall pay to Seller an amount equal to one hundred percent (100%) of such Tax Reduction. For purposes of this Section 6.09, the amount of any Tax Reduction shall be determined after taking into account all other applicable items of income, gain, deduction or loss (or any other Tax attributes) of the Company Group, any subsidiary of Buyer or any Affiliate of Buyer. Buyer shall be required to claim, and to cause the Company Group and any Affiliate or successor thereof to claim, a deduction or similar Tax item (and to claim no income, gain or similar Tax item) with respect to a Transaction Tax Deduction unless there is no reasonable basis for doing so under the standards of the Code. Buyer shall make a good faith effort to claim such deduction in the earliest taxable period in which it is permitted. Any dispute regarding whether the standard set forth in the preceding sentence is met, or regarding the calculation of the Tax Reduction, shall be referred to the Independent Accountant for final resolution. The determination of the Independent Accountant shall be final and binding absent manifest error, and the costs and expenses of the Independent Accountant shall be borne 50% by Buyer and 50% by Seller. Payment of any Tax Reduction shall be made within five (5) Business Days following the filing of the applicable Tax Return (including extensions) reflecting such Tax Reduction, together with interest on the amount of such payment computed at the applicable federal rate (determined under Section 1274 of the Code). Seller shall refund to Buyer any Tax Reduction, and any interest and penalties thereon, to the extent it has been paid by Buyer to Seller but is subsequently disallowed. Any payment owed by Seller to Buyer shall pursuant to the preceding sentence shall be made within five (5) Business Days following a determination that the Tax Reduction, including any penalties and interest thereon, is disallowed.

Section 6.09         Tax Disclaimer. Notwithstanding anything to the contrary herein, Seller and Buyer agree that Seller makes no representation or warranty, and provides no other assurance, with respect to the amount of any Tax attributes of the Company Group, or with respect to the availability on and after the Closing Date of any Tax attributes of the Company Group. Seller shall have no Liability for any Taxes resulting from or arising with respect to any sale of the Company Group (or any assets thereof) arising after and following the Closing Date. ****

ARTICLE VII

INDEMNIFICATION

Section 7.01         Survival.

(a)         The representations and warranties of each member of Seller and Buyer contained in this Agreement and any schedule, certificate or other document delivered pursuant hereto or in connection with the transactions contemplated hereby shall survive the Closing until the date that is eighteen (18) months from the Closing Date; provided, however, that:

(i)         the representations and warranties set forth in Sections 3.01, 3.02 and 4.01 (Authority and Organization), Section 3.03 (Capitalization), Section 3.10 (Title to Assets), Section 3.17 (Compliance with Law; Permits) and Sections 3.33 and 4.03 (Brokers), Section 3.23 (No FAA Enforcement or Investigations), Section 3.24 (No Open FAA Findings; Surveillance), Section 3.25 (Management Personnel Compliance; Notifications), Section 3.26 (Operations Specifications), Section 3.27 (Aircraft Airworthiness and Maintenance), Section 3.28 (No NTSB Investigations), Section 3.29 (No Required Regulatory Approvals; Change in Control), Section 3.30 (Aircraft Leases), Section 3.31 (Aviation Insurance) and Section 3.32 (Pilot and Crew Labor Matters) (collectively, referred to herein as, the “Fundamental Representations”), and any claim based on fraud or intentional misrepresentation in the making or intentional breach of any representation or covenant, shall survive until the date that is sixty (60) days after the expiration of the applicable statute of limitations;

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(ii)         the representations and warranties set forth in Section 3.20 and ARTICLE VI relating to Taxes shall survive until 120 days following the expiration of the applicable statute of limitations;

(iii)         the representations and warranties set forth in Section 3.21 relating to environmental matters shall survive until 120 days after the applicable statute of limitations; and

(iv)         the covenants and agreements of the Seller and Buyer contained in this Agreement shall survive the Closing until the expiration of the statute of limitations following the date all performance thereunder was due to be performed.

(b)         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.

Section 7.02         Indemnification By Seller. Subject to the other terms and conditions of this ARTICLE VII, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Company Group) and their respective Representatives (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses actually incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of:

(a)         any inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement or any Ancillary Documents;

(b)         any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement;

(c)         any Transaction Expenses of the Company Group outstanding as of the Closing to the extent not deducted from the Purchase Price in the determination of the Closing Date Payment;

(d)         any Loss from the failure to obtain a third-party consent required by the Company Group;

(e)         any Indebtedness not set forth on the Closing Indebtedness Certificate;

(f)         any amounts in excess of the Assumption Cap; and

(g)         any Losses arising out of or resulting from any DOT or FAA enforcement action, certificate action, OpSpecs limitation, required requalification, or determination of lack of fitness, in each case to the extent based on facts, circumstances, conditions, or operations occurring on or prior to the Closing Date.

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Section 7.03         Indemnification By Buyer. Subject to the other terms and conditions of this ARTICLE VII, Buyer shall indemnify and defend each of Seller and its Affiliates and their respective Representatives (collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses actually incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising out of, with respect to or by reason of:

(a)         any inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or in any certificate or instrument delivered by or on behalf of Buyer pursuant to this Agreement or any Ancillary Documents; and

(b)         any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement.

Section 7.04         Limitations on Indemnification.

(a)         Except with respect to breaches of Fundamental Representations and claims based on fraud, intentional misrepresentation and willful misconduct, the indemnifying party shall not be liable for indemnification under Section 7.02(a) or Section 7.03(a) until the aggregate amount of such Losses exceeds one percent (1.0%) of the Purchase Price, upon which the indemnifying party shall be required to pay and be liable for all Losses.

(b)         Notwithstanding anything to the contrary contained in this Agreement, the maximum aggregate amount of indemnifiable Losses which may be recovered from an indemnifying party arising out of or relating to the causes set forth in Section 7.02(a) or Section 7.03(a), as the case may be, shall be an amount equal to ten percent (10%) of the Purchase Price; provided, that the foregoing clause shall not apply to Losses arising out of or relating to any Fundamental Representation, or any representation or warranty in the event of fraud, willful misconduct, or intentional misrepresentation, which shall be capped at the Purchase Price, which shall be paid out in the same proportion of cash and preferred stock as the Initial Closing Date Payment, Post-Closing Payments, and the Preferred Shares. For the avoidance of date, the cash payment shall not exceed the actual cash received in the Initial Closing Date Payment and Post-Closing Payments.

(c)         Buyer shall not be entitled to indemnification for any breach of representation or warranty to the extent Buyer had actual knowledge of the inaccuracy or breach thereof prior to the Closing Date.

(d)         Except in the case of fraud, intentional misrepresentation or willful misconduct, the indemnification provisions set forth in this ARTICLE VII shall constitute the sole and exclusive remedy of the parties with respect to any breach of this Agreement or otherwise relating to the transactions contemplated hereby.

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Section 7.05         Indemnification Procedures.

(a)         Upon a Final Determination of an indemnification claim, if Buyer is the indemnified party, Buyer may deliver written notice to Seller electing to have any amount owed to Seller pursuant to the Post-Closing Payments reduced by an amount equal to such indemnity amount, and in such event Buyer shall have no further obligation to pay Seller such amount(s) so offset from the Post-Closing Payments (the “Post-Closing Payment Setoff”); provided, however, that (i) no Post-Closing Payment Setoff shall be permitted with respect to any disputed claim unless and until such claim has been finally determined in accordance with this ARTICLE VII, (ii) any such Post-Closing Payment Setoff shall be subject to the limitations set forth in Section 7.03, and (iii) notwithstanding anything to the contrary herein, no Post-Closing Payment Setoff shall be applied against the first five (5) scheduled Post-Closing Payments due under the Promissory Note, which payments shall in all events be paid when due and shall not be subject to setoff or reduction for any indemnification claim. Buyer may repeat such setoff until the Post-Closing Payments equal zero (0) dollars. To the extent that the amount of Losses payable pursuant to the applicable indemnification claim exceeds the total Post-Closing Payments owed to Seller, the amount of such excess shall be paid by Seller, subject in all respects to the limitations set forth in Section 7.03. The right to setoff provided by this Section 7.05 shall be in addition to, and not in lieu of, any other rights or remedies that may accrue to Buyer as a result of any indemnity claim against Seller.

(b)         Payment of amounts due under this indemnity shall be made promptly following Final Determination of such indemnification claim in accordance with this ARTICLE VII by wire transfer of immediately available funds to an account designated in writing by the indemnified party to the indemnifying party, but only after written notice is provided by the party claiming indemnification to the indemnifying party, explaining in detail the substance of the claim and the parties having at least thirty (30) days to discuss and resolve the matter. If the indemnifying party fails to respond within such thirty (30) day period, then the indemnification claim shall be deemed final solely for purposes of proceeding to binding determination in accordance with this Section and not as to the amount of Losses absent mutual written agreement of the parties or a binding determination by the independent third party described below. If the matter giving rise to the indemnification claim is curable and is cured by the indemnifying party within such thirty (30) day period and the indemnified party is not materially damaged, then no indemnification claim shall result. If the parties are unable to reach mutual agreement on the indemnification claim and resulting monetary damages or Post-Closing Payment Setoff within such thirty (30) day period, then the parties agree to seek resolution from a mutually agreed third party (whose decision shall be binding) prior to any indemnification claim being finalized, assessed and due and payable by the indemnifying party. The parties shall equally share the cost of the independent third party. If the event giving rise to indemnification is an Action initiated by a Person not a party to this Agreement, then the indemnifying party shall have the right to assume control of the defense of such Action, provided that the indemnifying party shall obtain the prior written consent of the indemnified party (which shall not be unreasonably withheld) before entering into any settlement of a claim or ceasing to defend such claim; provided, however, that no such settlement shall impose any non-monetary obligation on the indemnified party without its prior written consent.

Section 7.06         Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.

ARTICLE VIII

MISCELLANEOUS

Section 8.01         Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees and disbursements of counsel, brokers, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.

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Section 8.02         Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt or upon refusal to accept the notice); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission, which may be computer-generated) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address for a party as shall be specified in a notice given in accordance with this Section 10.02):

If to Seller: Creatd, Inc.<br><br> <br>169 Madison Ave. STE 2774<br> New York, NY 10016<br><br> <br>Attention: Jeremy Frommer<br><br> <br>E-mail: jeremy@creatd.com
with a copy to: Robby Tal<br><br> <br>Attention: Robby Tal<br><br> <br>E-mail: robby@creatd.com
If to Buyer: Catheter Precision, Inc.<br><br> <br>1670 Highway 160 West, Suite 205<br><br> <br>Fort Mill, South Carolina 29708<br><br> <br>Attention: David Jenkins<br><br> <br>E-mail: DJenkins@catheterprecision.com
with a copy to: Albrecht Law<br> Attention: Eli Albrecht<br> E-mail: Eli@Albrecht.Law

Section 8.03         Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein; provided, however, that in the event of any inconsistency between the terms of this Agreement and the Disclosure Schedules, the terms of this Agreement shall control, except to the extent a Disclosure Schedule expressly and specifically identifies a permitted exception to a particular representation or warranty.

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Section 8.04         Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

Section 8.05         Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Except as provided in Section 5.02(e), upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a manner that preserves, to the greatest extent practicable, the allocation of risk and economic benefits reflected in this Agreement immediately prior to such determination in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 8.06         Entire Agreement. This Agreement and the Ancillary Documents constitute the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in the Ancillary Documents, the Exhibits and Disclosure Schedules (other than an exception expressly set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.

Section 8.07         Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. No assignment shall relieve the assigning party of any of its obligations hereunder.

Section 8.08         No Third-Party Beneficiaries. Except as provided in ARTICLE VII, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 8.09         Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 8.10         Governing Law; Submission to Jurisdiction; Waiver of Jury Trial; Release.

(a)         This Agreement shall be governed by and construed in accordance with the internal laws of 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).

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(b)         ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ANCILLARY DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY SHALL BE INSTITUTED EXCLUSIVELY IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE; PROVIDED, HOWEVER, THAT IF THE COURT OF CHANCERY OF THE STATE OF DELAWARE DOES NOT HAVE SUBJECT MATTER JURISDICTION, SUCH SUIT, ACTION OR PROCEEDING SHALL BE BROUGHT IN THE SUPERIOR COURT OF THE STATE OF DELAWARE OR, IF REQUIRED, IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE. EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT REQUESTED) TO SUCH PARTY’S ADDRESS SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUCH SUIT, ACTION OR PROCEEDING. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c)         EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE ANCILLARY DOCUMENTS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.10(c).

(d)         Seller Waiver and Release. Effective for all purposes as of immediately prior to the Closing, Seller (on behalf of itself and such it’s successors and assigns) (collectively, the “Seller Releasors”), irrevocably and unconditionally releases and forever discharges Buyer, its Affiliates (including, from and after the Closing, each member of the Company Group), and its and their respective current and former direct and indirect equityholders, members, directors, managers, partners (limited and general), officers, employees, agents, representatives and their respective successors and assigns (collectively, the “Seller Releasees”) from any and all Actions, claims, charges, complaints, causes of action, damages, Losses, costs, expenses and liabilities of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, fixed or contingent, and whether at law or in equity, that such Seller Releasor has, had, or may have, in any capacity, against any Seller Releasee, whether directly or derivatively through another Person, arising contemporaneously with or prior to the transactions contemplated by this Agreement, or on account of, arising out of or related to any act, omission, transaction, matter, cause or event occurring contemporaneously with or up to and including the Closing Date arising out of or related to the Company Group, its Affiliates and its or their respective officers, directors and Representatives; provided, that nothing contained in this Section 8.10(d) shall be deemed to limit (i) any rights pursuant to this Agreement or any Ancillary Agreements (including any claims arising from or relating to any breach of this Agreement or any Ancillary Agreement occurring after the Closing), (ii) any rights to indemnification or advancement of expenses to which the current and former directors and officers of the Company are entitled pursuant to this Agreement or the Company Group’s governing documents or (iii) any claims based on fraud, willful misconduct, or intentional misrepresentation; provided, further, that each Seller Releasor agrees not to make, and to waive any claim for, indemnification, advancement of expenses, exculpation or contribution from any Seller Releasee under the Company Group’s governing documents, or any indemnification agreement, arrangement or understanding with any Seller Releasee, arising out of or related to any dispute between any Seller Releasee, on the one hand, and a Seller Releasor (acting in any capacity), on the other hand, with respect to any matter arising out of or related to this Agreement or the Ancillary Agreements, other than as may be specifically provided for in ARTICLE VII herein.

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Section 8.11         Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy to which they are entitled at law or in equity.

Section 8.12         Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

[signature page follows]

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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

SELLER:
CREATD, INC.<br><br> <br><br><br> <br>By: _____________________<br> Name:<br><br> <br>Title:
BUYER:<br><br> <br><br><br> <br>CATHETER PRECISION, INC.
By: _____________________<br> Name:<br> Title:

[Signature Page to Purchase Agreement]

Schedule I

Defined Terms

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Ancillary Documents” means the Stock Power and Assignment Agreement.

“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks in Delaware are authorized or required by federal Law to be closed for business.

“Closing Indebtedness Certificate” means a certificate executed by Seller certifying on behalf of the Company Group an itemized list of all outstanding Indebtedness, including all outstanding accounts payable, as of the close of business on the Closing Date and the Person to whom such outstanding Indebtedness is owed and an aggregate total of such outstanding Indebtedness, which shall not exceed the amounts set forth on Schedule 5.08.

“Closing Transaction Expenses Certificate” means a certificate executed by the Seller, certifying the amount of Transaction Expenses remaining unpaid as of the close of business on the Closing Date (including an itemized list of each such unpaid Transaction Expense with a description of the nature of such expense and the person to whom such expense is owed).

“Code” means the Internal Revenue Code of 1986, as amended.

“Company Group” means the Company and Ponderosa.

“Company Intellectual Property” means all Intellectual Property that is owned by any member of the Company Group.

“Contracts” means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and all other agreements, commitments and legally binding arrangements, whether written or oral.

“Disclosure Schedules” means the Disclosure Schedules delivered by Seller and accepted by Buyer concurrently with the execution and delivery of this Agreement.

“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“Enforceability Exceptions” means bankruptcy, insolvency, moratorium, and other similar Laws affecting creditor’s rights generally and by general equitable principles.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder.

“ERISA Affiliate” means all employers (whether or not incorporated) that would be treated together with any member of the Company Group or any of their respective Affiliates as a “single employer” within the meaning of Section 414 of the Code or Section 4001 of ERISA.

“Final Determination” shall mean (i) a written agreement of the parties as to the amount of Losses, or (ii) a binding determination by the mutually agreed independent third party, or (iii) a final, non-appealable judgment of a court of competent jurisdiction.

“Flewber Acquisition Date” shall mean the effective date of February 27, 2025, where the Seller thereby took ownership of the Company Group.

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

“Indebtedness” means, without duplication and with respect to the Company Group, all indebtedness of the Company Group, including, without limitation: (i) all obligations of such Person for borrowed money or in respect of loans or advances, (ii) all obligations of such Person evidenced by bonds, notes or other similar instruments (including any seller notes, deferred purchase price obligations or earnout obligations issued or entered into in connection with any acquisition undertaken by such Person (at the maximum amount payable)), (iii) all obligations in respect of letters of credit, to the extent drawn, and bankers’ acceptances issued for the account of such Person, (iv) all obligations and liabilities of such Person under leases required under GAAP to be capitalized, (v) all interest rate protection agreements of such Person (valued on a market quotation basis), if any, (vi) all obligations of such Person secured by a lien, (vii) all outstanding checks that will ultimately be funded through such Person’s line of credit or other borrowed money, (viii) all obligations for underfunded employee benefit plans, (ix) all liabilities with respect to any current or former employee, officer or director of any member of the Company Group that arise before or on the Closing Date, including all liabilities with respect to any employee benefit plan, all accrued salary, deferred compensation and vacation obligations, all workers’ compensation claims, any liability in respect of accrued but unpaid bonuses for the prior fiscal year and for the period commencing on January 1, 2026 and ending on the Closing Date, and any employment Taxes payable by any member of the Company Group with respect to the foregoing, (x) any off-balance financing of a Person (but excluding operating leases), (xi) all customer prepayments for multi-year obligations or otherwise, where cash has been collected for more than a one-year period or where cash has been collected in a manner not consistent with either the underlying contract with the applicable customer or normal business practices of the Business, (xii) any deferred revenue with respect to any customer arrangements, (xiii) any unpaid Pre-Closing Taxes, (xiv) all guarantees of such Person in connection with any of the foregoing, and (xv) any accrued interest and prepayment premiums or penalties, breakage costs, make-whole payments and expense reimbursements relating to any amount prepaid at or in connection with the Closing related to any of the foregoing. Indebtedness shall not include any Transaction Expenses.

“Independent Accountant” means a mutually agreeable third-party accounting firm that has not been engaged by Buyer or Seller within the two years prior to the date of this Agreement.

“Intellectual Property” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) issued patents and patent applications (whether provisional or non-provisional), including divisionals, continuations, continuations-in-part, substitutions, reissues, reexaminations, extensions, or restorations of any of the foregoing, and other Governmental Authority-issued indicia of invention ownership (including certificates of invention, petty patents, and patent utility models) (“Patents”); (b) trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals of, any of the foregoing (“Trademarks”); (c) copyrights and works of authorship, whether or not copyrightable, and all registrations, applications for registration, and renewals of any of the foregoing (“Copyrights”); (d) internet domain names and social media account or user names (including “handles”), whether or not Trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not Copyrights; (e) mask works, and all registrations, applications for registration, and renewals thereof; (f) industrial designs, and all Patents, registrations, applications for registration, and renewals thereof; (g) trade secrets, know-how, inventions (whether or not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential and proprietary information and all rights therein (“Trade Secrets”); (h) computer programs, operating systems, applications, firmware, and other code, including all source code, object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof (“Software”); (i) rights of publicity; and (j) all other intellectual or industrial property and proprietary rights.

“Knowledge” or any similar phrase means the actual knowledge of Company’s Chief Executive Officer, Director of Operations, Chief Pilot, and Director of Maintenance after reasonable inquiry of their respective direct reports who would reasonably be expected to have knowledge of the matter in question.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any Governmental Authority.

“Licensed Intellectual Property” means all Intellectual Property in which any member of the Company Group holds any rights or interests granted by other Persons, including Seller or any of its Affiliates.

“Losses” means losses, damages, Liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Material Adverse Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the Company Group (individually or in aggregate), or (b) the ability of Seller to consummate the transactions contemplated hereby on a timely basis, except to the extent caused by or resulting from: (i) changes in general economic or political conditions (whether local, domestic, non-U.S., or international); (ii) changes in financial, banking or securities markets in general, including any disruption thereof and any decline in the price of any security or any market index or any change in prevailing interest rates, or any change generally affecting the industries or markets in which the Company Group or any subsidiary operates; (iii) acts of war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (iv) any action required or permitted by this Agreement or any action taken (or omitted to be taken) with the written consent of or at the written request of Buyer; (v) any changes in applicable Laws or applicable accounting rules (including U.S. Generally Accepted Accounting Principles); or (vi) any natural or man-made disaster or acts of God.

“Permitted Encumbrances” means (a) materialmen’s, mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s and other like Encumbrances arising in the ordinary course of business which are not yet due and payable and not incurred in connection with the borrowing of money (including, without limitation, Encumbrances arising from aircraft maintenance and repair services, jet fuel providers, landing and handling services, and other aviation-related operational services provided in the ordinary course of business); (b) Encumbrances for Taxes not yet due and payable, or being contested in good faith through appropriate Action in a timely manner, in each case for which adequate reserves have been established (including, without limitation, Federal Excise Taxes and Segment Fees applicable to aviation operations); (c) zoning, building codes and other land use Laws, regulating the use or occupancy of such assets or the activities conducted thereon which are imposed by any Governmental Authority having jurisdiction over such assets or the activities conducted thereon which are not violated by the current use or occupancy of such assets or the operation of business of the Company Group (including, without limitation, applicable aviation and Federal Aviation Administration regulations); (d) statutory Encumbrances of landlords with respect to Real Property; (e) Encumbrances incurred in the ordinary course of business in connection with (i) workers’ compensation; (ii) unemployment compensation; and (iii) other types of social security, not yet delinquent; (f) Encumbrances created as a result of any act taken by or through the Buyer; (g) the right reserved to or vested in any Governmental Authority by any statutory provision; and (h) restrictions on transfer under Federal and state securities Laws; and (i) obligations and liabilities arising under contracts, leases, and service agreements entered into in the ordinary course of business, including without limitation aircraft leases, hangar leases, office leases, equipment leases, jet card agreements, maintenance program agreements, and insurance policies, in each case to the extent assumed by Buyer from and after the Closing.

“Permits” means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained, or required to be obtained, from Governmental Authorities.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.

“Personal Property” means the property set forth on Schedule 1.1.

“Post-Closing Tax Period” means any taxable period beginning after the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period beginning after the Closing Date.

“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning before and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.

“Pre-Closing Taxes” means Taxes of any member of the Company Group for any Pre-Closing Tax Period.

“Revenue” means the total amount of revenue of the Company Group for the prior calendar year.

“Real Property” means the real property owned, leased or subleased by any member of the Company Group, together with all buildings, structures and facilities located thereon.

“Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.

“Restricted Business” means the business of operating aircraft in accordance with the Certificate and applicable Law, including exercising operational control over flights conducted under the Certificate and the sale of air charter brokered in accordance with 14 C.F.R. Part 295 and applicable Law.

“Taxes” means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, unclaimed property or escheat obligations, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties.

“Tax Return” means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“Territory” means the United States, Canada and the Bahamas.

“Transaction Expenses” means all fees and expenses incurred by the Company Group or Seller at or prior to the Closing in connection with the preparation, negotiation and execution of this Agreement and the Ancillary Documents, and the performance and consummation of the transactions contemplated hereby and thereby.

“Transition Period Expenses” means the period where both the Seller and Buyer acknowledge that the full operating costs and payables of running the business stopped being conducted by the Seller and were assumed by SEG Opportunity Fund, LLC (“SEG”) on February 13, 2026 until the effective Closing Date of this Agreement. The Transition Period Expenses creates an Accounts Payable due SEG by the Buyer post-Closing this Transaction.

EXHIBIT A

PROMISSORY NOTE

$5,000,000.00

Dated: March 9, 2026

FOR VALUE RECEIVED, Catheter Precision, Inc., a Delaware corporation (“Maker”), hereby promises to pay to Creatd, Inc., a Nevada corporation (“Holder”), the principal sum of Five Million Dollars ($5,000,000.00), together with interest thereon as provided herein.

This Promissory Note (this “Note”) is issued in connection with that certain Securities Purchase Agreement dated as of March 9, 2026 (the “Purchase Agreement”). Capitalized terms not defined herein shall have the meanings set forth in the Purchase Agreement.

1. Payment of Principal. The outstanding principal amount of this Note shall be payable in installments as follows:
● $500,000.00 due within three (3) Business Days of the Buyer’s April 2026 shareholder meeting date, not to exceed fifty (50) calendar days from the signing of this Purchase Agreement.
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● $500,000.00 on May 15, 2026
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● $500,000.00 on June 15, 2026
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● $500,000.00 on July 15, 2026
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● $600,000.00 on August 15, 2026
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● $600,000.00 on September 15, 2026
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● $600,000.00 on October 15, 2026
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● $600,000.00 on November 15, 2026
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● $600,000.00 on December 15, 2026
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All payments shall be made in lawful money of the United States by wire transfer of immediately available funds to such account as Holder designates in writing.

2. Interest; Late Fee. This Note shall not bear interest so long as all payments are timely made in accordance with the payment schedule set forth herein. If any amount payable hereunder is not paid within three (3) Business Days after its due date (an “Overdue Amount”), interest shall accrue on the overdue amount, without notice, at a rate equal to the four percent (4%) per annum, calculated from the fourth (4th) Business Day following the original due date of such overdue amount until such overdue amount plus any accrued and unpaid interest is paid in full. In addition thereto, a late fee equal to one and one-half percent (1.5%) of any Overdue Amount shall be immediately due and payable.

Exhibit A

3. Events of Default. An “Event of Default” shall mean the failure to pay any payment under this Note and failure to cure that default within fifteen (15) days after the receipt of notice from the Holder that such payment is in default its due date.
4. Acceleration. Upon the occurrence and continuation of an Event of Default, Holder may, upon written notice to Maker, declare the entire unpaid principal balance of this Note, together with all accrued interest, penalties and late fees immediately due and payable. ****
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5. Default Interest. Upon the occurrence of an Event of Default, the outstanding principal balance of this Note shall bear interest at a rate equal to eighteen percent (18%) per annum, subject in all cases to applicable usury limitation.
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6. Application of Payments. Payments shall be applied first to accrued interest, penalties, late charges, Enforcement Costs, and then to principal.
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7. No Setoff. Following a Final Determination, in the event Holder is obligated to indemnify Maker from or against any claim under the provisions of Article VII of the Purchase Agreement, then the amount due as a result of such indemnification obligation may be satisfied and paid by applying said amount to reduce the principal balance of this Note in accordance with the terms of the Purchase Agreement.
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8. Prepayment. Maker may prepay this Note in whole or in part at any time without any fee or penalty. Any prepayment shall be applied first to accrued interest and then to principal.
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9. Attorneys’ Fees; Enforcement Costs. Maker shall reimburse Holder upon demand for all reasonable attorney’s fees incurred by Holder in connection with the enforcement or protection of Holder’s rights under this Note, whether litigation is commenced or not (collectively, the “Enforcement Costs”).
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10. Waivers. Maker waives presentment, demand, protest, notice of dishonor, and all other notices except as expressly provided herein.
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11. Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of New York.
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12. Modification and Amendment. This Note may not be amended, modified or changed, nor shall any waiver of any provision of this Note be effective, unless it is formalized by an instrument in writing and signed by the party against whom enforcement of any waiver, amendment, change, modification or discharge is sought.
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13. Notices. Except as otherwise provided in this Note, all notices and consents required or permitted under this Note shall be in writing and may be delivered by hand, mailed by first class registered or certified mail, return receipt requested, postage prepaid, or by other recognized delivery service providing confirmation of delivery, and addressed as follows:
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If to Holder: Creatd, Inc.<br><br> <br>169 Madison Ave. STE 2774<br> New York, NY 10016<br><br> <br>Attention: Jeremy Frommer<br><br> <br>E-mail: jeremy@creatd.com and billing@creatd.com
If to Maker: Catheter Precision, Inc.<br><br> <br>1670 Highway 160 West, Suite 205<br><br> <br>Fort Mill, South Carolina 29708<br><br> <br>Attention: David Jenkins<br><br> <br>E-mail: DJenkins@catheterprecision.com

Changes in the respective address to which such notices may be directed may be made from time to time by either party by notice to the other party. Notices and consents given by mail in accordance with this paragraph shall be deemed to have been given on the third day after the date of mailing; notices and consents given by other means shall be deemed to have been given when received.

[Signature page follows]

IN WITNESS WHEREOF, Maker has executed this Promissory Note as of the date first written above.

CATHETER PRECISION, INC.

By: __________________________

Name:

Title:

Exhibit A

EXHIBIT B

CERTIFICATE OF DESIGNATIONS

[See attached.]

EXHIBIT C

REGISTRATION RIGHTS AGREEMENT

[See attached.]

EXHIBIT D

STOCK POWER

FOR GOOD AND VALUABLE CONSIDERATION, the undersigned transferor (the “Transferor”) does hereby contribute, assign and transfer unto Catheter Precision, Inc., a Delaware corporation, all of its right, title and interest in 800,200 shares of common stock, par value $0.001 per share of Fly Flyte, Inc., a New York corporation (the “Corporation”), which represent all of the shares of the Corporation standing in the name of Transferor on the Corporation’s books; and hereby irrevocably constitutes and appoints any officer of the Corporation attorney-in-fact to transfer the said shares on the books of the Corporation with full power of substitution in the premises.

Date: March 9, 2026

TRANSFEROR:

CREATD, INC.

By:

Name:

Title:

EXHIBIT E

ASSIGNMENT OF MEMBERSHIP INTERESTS

This ASSIGNMENT OF MEMBERSHIP INTERESTS (this “Assignment”) is dated as of March 9, 2026 (the “Effective Date”), by and between Creatd, Inc., a Nevada corporation (the “Assignor”) and Catheter Precision, Inc., a Delaware corporation (the “Assignee”).

WHEREAS, the Assignor owns one hundred percent (100%) of the issued and outstanding membership interests of Ponderosa Air, LLC, a New York limited liability company (the “Company”); and

WHEREAS, the Assignor wishes to sell, convey, transfer, assign and deliver one hundred percent (100%) of the membership interests of the Company (collectively, the “Assigned Units”) to the Assignee (the “Assignment”).

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth in this Assignment, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1.         Assignment. The Assignor hereby sells, conveys, transfers, assigns and delivers to the Assignee all of their respective right, title, and interest in and to the Assigned Units, and the Assignee hereby agrees to such sale, conveyance, transfer, assignment and delivery and accepts the Assigned Units.

2.         Incorporation of Recitals. The recitals set forth above are incorporated herein by reference.

3.         Effectiveness. This Assignment shall be effective immediately as of the Effective Date.

4.         Governing Law. This Assignment shall be governed by the laws of the State of New York.

5.         Execution. This Assignment may be executed in counterparts and via “.pdf”, facsimile and DocuSign (or its equivalent).

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto executed this Assignment as of the date first written above.

ASSIGNOR:

CREATD, INC.

By: ______________________

Name:

Title:

ASSIGNEE:

CATHETER PRECISION, INC.

By: ______________________

Name:

Title:

ex_929498.htm

Exhibit 10.3

CERTIFICATE OF AMENDMENT OF

CERTIFICATE OF DESIGNATIONS OF

SERIES C-1 CONVERTIBLE PREFERRED STOCK OF

CATHETER PRECISION, INC.

PURSUANT TO SECTION 242 OF THE

DELAWARE GENERAL CORPORATION LAW

This Certificate of Amendment to the Certificate of Designations of Series C-1 Convertible Preferred Stock (the “Amendment”) is dated as of March 6, 2026.

WHEREAS, the board of directors (the “Board”) of Catheter Precision, Inc., a Delaware corporation (the “Company”), pursuant to the authority granted to it by the Company’s Certificate of Incorporation (the “Certificate of Incorporation”) and Section 151(g) of the Delaware General Corporation Law (the “DGCL”), has previously fixed the rights, preferences, restrictions and other matters relating to a series of the Company’s preferred stock, consisting of 1,783.33 authorized shares of preferred stock, classified as Series C-1 Convertible Preferred Stock (the “Preferred Stock”) and the Certificate of Designations of the Preferred Stock (the “Certificate of Designations”) was initially filed with the Secretary of State of the State of Delaware on February 9, 2026, evidencing such terms;

WHEREAS, pursuant to Section 31(b) of the Certificate of Designations, the Certificate of Designations or any provision thereof may be amended by obtaining the affirmative vote at a meeting duly called for such purpose, or written consent without a meeting in accordance with the DGCL, of at least a majority of the outstanding Preferred Stock (the “Required Holders”), voting separately as a single class, and with such stockholder approval, if any, as may then be required pursuant to the DGCL and the Certificate of Incorporation;

WHEREAS, the Required Holders pursuant to the Certificate of Designations have consented, in accordance with the DGCL, on March 6, 2026, to this Amendment on the terms set forth herein; and

WHEREAS, the Board has duly adopted resolutions proposing to adopt this Amendment and declaring this Amendment to be advisable and in the best interest of the Company and its stockholders.

NOW, THEREFORE, this Amendment has been duly adopted in accordance with Section 242 of the DGCL and has been executed by a duly authorized officer of the Company as of the date first set forth above to amend the terms of the Certificate of Designations as follows:

  1. Section 2 of the Certificate of Designations is hereby amended and restated to read as follows (emphasis added):
2. Designation, Amount and Par Value. The series of preferred stock shall be designated as its Series C-1 Convertible Preferred Stock (the “Preferred Stock”) and the number of shares so designated shall be up to 3,636.33, which shall not be subject to increase without the written consent of the holders (each, a “Holder” and collectively, the “Holders”) of a majority of the then outstanding shares of the Preferred Stock. Each share of Preferred Stock shall have a par value of $0.0001 per share and a stated value equal to $1,000.00 (the “Stated Value”).

[Signature Page Follows]

IN WITNESS WHEREOF, the Company has caused this Amendment to be signed by its duly authorized officer this 6th day of March, 2026.

CATHETER PRECISION, INC.
By: /s/ Philip Anderson
Name: Phillip Anderson
Title: Chief Financial Officer

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