Exhibit 10.1
STRATA PURCHASE
AGREEMENT
THIS STRATA PURCHASE AGREEMENT
(the “Agreement”), dated as of October 13, 2023, by and between FOXO TECHNOLOGIES, INC., a Delaware corporation
(the “Company”), and CLEARTHINK CAPITAL PARTNERS, LLC, a Delaware limited liability company (the “Investor”).
WHEREAS:
Subject to the terms, conditions
and limitations on the number of shares which may be sold set forth in this Agreement, the Company wishes to sell to the Investor, and
the Investor wishes to purchase from the Company, up to Two Million Dollars ($2,000,000) of the Company’s Class A common stock,
par value $0.0001 per share (the “Common Stock”). The shares of Common Stock to be purchased hereunder are referred
to herein as the “Purchase Shares.”
NOW THEREFORE, in consideration
of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company and the Investor hereby agree as follows:
For purposes of this
Agreement, the following terms shall have the following meanings:
(a) “Average
Price” means a price per Purchase Share (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing
(i) the aggregate gross purchase price paid by the Investor for all Purchase Shares purchased pursuant to this Agreement, by (ii) the
aggregate number of Purchase Shares issued pursuant to this Agreement.
(b) “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(c) “Business
Day” means any day on which the Principal Market is open for trading, including any day on which the Principal Market is open
for trading for a period of time less than the customary time.
(d) “Closing
Sale Price” means, for any security as of any date, the last closing sale price for such security on the Principal Market as
reported by the Principal Market.
(e) “Closings”
shall occur upon the settlement of the trades of the Purchase Share Amount associated with a Request (or sooner as directed by the Investor).
(f) “Commitment
Amount” means, initially, Two Million Dollars ($2,000,000) in the aggregate, which amount shall be reduced by the amount paid
by the Investor each time the Investor purchases shares of Common Stock pursuant to Section 2 hereof.
(g) “Commitment
Fee” means the 1,000,000 (?) restricted shares of Common Stock (the “Commitment Shares”) issued to Investor in connection
with the entry into the Agreement.
(h) “Concurrent
Purchase Agreement” means the Securities Purchase Agreement being entered into between the Investor and the Company with respect
to the sale of 2,000,000 shares of the Class A Common Stock of the Company.
(i) “Confidential
Information” means any information disclosed by either party to the other party or any of their respective affiliates, either
directly or indirectly, electronically, in writing, orally or by inspection of tangible objects (including, without limitation, documents,
prototypes, samples, plant and equipment), regardless of whether or not such information, documentation or data is marked or otherwise
identified as “confidential”, “proprietary” or a similar designation. Confidential Information will also include
information disclosed to a disclosing party by third parties where such parties have an obligation of confidentiality with respect to
such information. Confidential Information shall not, however, include any information which (i) was publicly known and made generally
available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally
available after disclosure by the disclosing party to the receiving party other than as a result of a disclosure in violation of this
Agreement; (iii) is already in the possession of the receiving party without confidential restriction at the time of disclosure by the
disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained
by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently
developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents
and other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party,
provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance
in obtaining an order protecting the information from public disclosure.
(j) “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(k) “DTC”
means The Depository Trust Company, or any successor performing substantially the same function for the Company.
(l) “DWAC
Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without
restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified Deposit/Withdrawal
at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar program hereafter adopted
by DTC performing substantially the same function.
(m) “Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(n) “Fully
Adjusted Regular Purchase Share Limit” means, with respect to any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction from and after the date of this Agreement, the Purchase Share Limit (as defined in Section 2(a)
hereof) in effect on the applicable date of determination, after giving effect to the full proportionate adjustment thereto made pursuant
to Section 2(a) hereof for or in respect of such reorganization, recapitalization, non-cash dividend, stock split or other similar
transaction.
(o) “Material
Adverse Effect” means any material adverse effect on the business, operations, assets, financial condition or prospects of the
Company or its Subsidiaries, if any, taken as a whole, or on the ability to consummate the transactions contemplated hereby or by the
agreements or instruments to be entered into in connection herewith, provided, however, that "Material Adverse Effect"
shall not include any event, occurrence, fact, condition or change, directly or indirectly, arising out of or attributable to: (i) general
economic or political conditions; (ii) conditions generally affecting the industries in which the Company operates; (iii) any changes
in financial or securities markets in general; (iv) any action required or permitted by this Agreement; (vi) any changes in applicable
laws or accounting policies; or (vii) the public announcement, pendency or completion of the transactions contemplated by this Agreement
by the agreements or instruments to be entered into in connection herewith.
(p) “Maturity
Date” means the first day of the month immediately following the twenty-four (24) month anniversary of the Commencement Date.
(q) “Person”
means an individual or entity including but not limited to any limited liability company, a partnership, a joint venture, a corporation,
a trust, an unincorporated organization and a government or any department or agency thereof.
(r) “Principal
Market” means The NYSE American (or any nationally recognized successor thereto); provided, however, that in the event the Company’s
Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, the New York Stock Exchange, the NYSE
American, the NYSE Arca, the OTC Bulletin Board, the OTCQX operated by the OTC Markets Group, Inc. or the OTCQB operated by the OTC Markets
Group, Inc. (or any nationally recognized successor to any of the foregoing), then the “Principal Market” shall mean such
other market or exchange on which the Company’s Common Stock is then listed or traded.
(s) “Purchase
Date” means, with respect to any purchase made pursuant to Section 2(a) hereof, the Business Day on which the Investor
receives by 6:00 p.m., Eastern time, of such Business Day a valid Request Notice that the Investor is to purchase such applicable number
of Purchase Shares pursuant to Section 2(a) hereof.
(t) “Purchase
Price”, with respect to any purchase made pursuant to Section 2(a) hereof, the price per share of Common Stock
purchased shall equal 85% of the lowest daily VWAP during the Valuation Period (in each case, to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction that occurs on or after the date of this Agreement).
(u) “Purchase
Share Amount” means the number of shares of Common Stock the Company is requiring the Investor to purchase.
(v) “Registration
Rights Agreement” means that certain Registration Rights Agreement entered into in October 2023 between the Company and the
Investor.
(w) “Request”
means the Company may draw upon the Commitment Amount periodically during the Term by the Company’s delivery to the Investor of
a written Purchase Notice requiring the Investor to purchase a number of shares of Common Stock.
(x) “Request
Limits” means the number of shares of Common Stock the Company is requiring the Investor to purchase to be limited to the lesser
of $1,000,000 or 300% of the average number of shares traded for the 10 trading days prior to the Closing Request Date. No Purchase Notices
are allowed until the shares have been registered. Minimum Purchase Notice allowable is $25,000. Purchase Notices must be at least 10
business days apart. In no event may the shares issuable pursuant to a Purchase Notice, when aggregated with the shares then held by the
Investor on the date of the Purchase Notice, exceed 4.99% of the Company’s outstanding Common Stock. Request Limits are further
limited by the provisions of Section 2 (c) hereof.
(y) “Request
Notice” means, with respect to any Request made pursuant to Section 2(b) hereof, an irrevocable written notice from the
Company to the Investor directing the Investor to purchase a specified number of shares of Common Stock on the applicable Purchase Date
pursuant to Section 2(b) hereof at the applicable Purchase Price.
(z) “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal Market.
(aa) “SEC”
means the U.S. Securities and Exchange Commission.
(bb) “Securities”
means, collectively, the Purchase Shares and the Commitment Shares
(cc) “Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(dd) “Subsidiary”
means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting stock
or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated under the
Securities Act.
(ee) “Transaction
Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration Rights Agreement and
the schedules and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered into or furnished
by the parties hereto in connection with the transactions contemplated hereby and thereby.
(ff) “Transfer
Agent” means Continental Stock Transfer, or such other Person who is then serving as the transfer agent for the Company in respect
of the Common Stock.
(gg) “Valuation
Period” means ten trading days consisting of the five trading days preceding the Purchase Date with respect to a Request Notice
and five trading days commencing on the first trading day following delivery and clearing of the delivered shares.
| 2. | PURCHASE OF COMMON STOCK. |
Subject to the terms and
conditions set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has the obligation to purchase
from the Company, Purchase Shares as follows:
(a) Commencement
of Sales of Common Stock. Upon the satisfaction of the conditions set forth in Sections 7 and 8 hereof (the “Commencement”
and the date of satisfaction of such conditions the “Commencement Date”) and thereafter, the Company shall have the
right, but not the obligation, to direct the Investor, by its delivery to the Investor of a Request Notice from time to time, to purchase
shares of Common Stock (“Purchase Shares”), subject to adjustment as set forth below in this Section 2(a), up to the
Request Limit, at the Purchase Price on the Purchase Date. If the Company delivers any Request Notice for a Purchase Share Amount in excess
of the Request Limits, such Request Notice shall be void ab initio to the extent of the number by which the number of Purchase
Shares set forth in such Request Notice exceeds the number of Purchase Shares which the Company is permitted to include in such Request
Notice in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Request
Notice; provided that the Investor shall remain obligated to purchase the number of Purchase Shares which the Company is permitted to
include in such Request Notice. The Company may deliver Request Notices to the Investor as often as every Business Day, so long as the
Company has not failed to deliver Purchase Shares for all prior Purchase Share Amounts, including, without limitation, those that have
been effected on the same Business Day as the applicable Purchase Date, have theretofore been received by the Investor as DWAC Shares
in accordance with this Agreement.
(b) Payment
for Purchase Shares. For each Purchase, the Investor shall pay to the Company an amount equal to the product of the Purchase Shares
Amount and the Purchase Price with respect to such Purchase as full payment for such Purchase Shares via wire transfer of immediately
available funds on the Business Day that the Investor receives settlement of the trades of such Purchase Shares but in no event later
than seven trading days after the date of the Purchase Notice. All payments made under this Agreement shall be made in lawful money of
the United States of America or wire transfer of immediately available funds to such account as the Company may from time to time designate
by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the terms of this Agreement
is due on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is a Business Day.
(c) Beneficial
Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue or sell, and
the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated with all other shares
of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant to Section 13(d) of the Exchange Act
and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor and its affiliates of more than 9.99%
of the then issued and outstanding shares of Common Stock.
Upon the written
or oral request of the Investor, the Company shall promptly confirm orally or in writing to the Investor the number of shares of Common
Stock then outstanding. The Investor and the Company shall each cooperate in good faith in the determinations required hereby and the
application hereof. The Investor’s written certification to the Company of the applicability of the beneficial ownership limitation,
and the resulting effect thereof hereunder at any time, shall be conclusive with respect to the applicability thereof and such result
absent manifest error.
(d) Compliance
with Principal Market Rules; Exchange Cap. The Company shall not issue any Securities pursuant to this Agreement or the Concurrent
Purchase Agreement if (I) such issuance would reasonably be expected to cause the aggregate number of shares of Common Stock issued pursuant
to such agreements to exceed 19.99% of the outstanding shares of Common Stock immediately prior to the date hereof unless shareholder
approval pursuant to the rules and regulations of the Principal Market has been obtained or (II) otherwise cause the Company to breach
any of the rules or regulations of the Principal Exchange. Furthermore, the Company agrees that it shall not issue any Securities pursuant
to this Agreement if, at the time of such issuance (Y) the effectiveness of the Registration Statement registering the Securities has
lapsed for any reason (including, without limitation, the issuance of a stop order or similar order) or (Z) the Registration Statement
is unavailable for the sale by the Company to the Investor (or the resale by the Investor, as the case may be) of any or all of the Securities
to be issued to the Investor under the Transaction Documents. The provisions of this Section 2(d) shall be implemented in a manner
otherwise than in strict conformity with the terms hereof only if necessary to ensure compliance with the Securities Act and the rules
and regulations of the Principal Market.
(e) Issuance of the Commitment Shares. Promptly after the date hereof the Coompany will
issue the Commitment Shares to the Investor.
| 3. | INVESTOR’S REPRESENTATIONS AND WARRANTIES. |
The Investor represents and
warrants to the Company that as of the date hereof and as of the Commencement Date:
(a) Investment
Purpose. The Investor is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling
such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention
of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or
indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities in violation
of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Investor’s right
to sell the Securities at any time pursuant to the Registration Statement described herein or otherwise in compliance with applicable
federal and state securities laws). The Investor is acquiring the Securities hereunder in the ordinary course of its business.
(b) Accredited
Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation D promulgated
under the Securities Act.
(c) Reliance
on Exemptions. The Investor understands that the Securities may be 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 the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and understandings
of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor to acquire
the Securities.
(d)
(e) Good
Standing. The Investor is a limited liability company, duly organized, validly existing and in good standing in the State of Delaware.
(f) Information.
The Investor understands that its investment in the Securities involves a high degree of risk. The Investor (i) is able to bear the economic
risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities and (iii) has had an opportunity
to ask questions of and receive answers from the officers of the Company concerning the financial condition and business of the Company
and other matters related to an investment in the Securities. Neither such inquiries nor any other due diligence investigations conducted
by the Investor or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations
and warranties contained in Section 4 below. The Investor has sought such accounting, legal and tax advice from its own independent
advisor as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities and is
not relying on any such advice or similar advice from the Company, its officers, directors, representatives, or advisors.
(g) No
Governmental Review. The Investor understands that no U.S. 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 an investment in the Securities
nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(h) Transfer
or Sale. The Investor understands that (i) the Securities may not be offered for sale, sold, assigned or transferred unless (A) registered
pursuant to the Securities Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred without such
registration; (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 Securities Act) may require compliance with some
other exemption under the Securities Act or the rules and regulations of the SEC thereunder.
(i) Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor and is a valid
and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as to enforceability to general
principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating
to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(j) Residency.
The Investor is a resident of the State of New York.
(k) No
Short Selling. The Investor represents and warrants to the Company that at no time prior to the date of this Agreement has any of
the Investor, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any
(i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging
transaction, which establishes a net short position with respect to the Common Stock.
| 4. | REPRESENTATIONS AND WARRANTIES OF THE COMPANY. |
The Company represents and
warrants to the Investor that, except as set forth in the disclosure schedules attached hereto, which exceptions shall be deemed to be
a part of the representations and warranties made hereunder, as of the date hereof and as of the Commencement Date:
(a) Organization
and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate power and authority
to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any of its Subsidiaries
is in violation or default of any of the provisions of its respective articles or certificate of incorporation, bylaws or other organizational
or charter documents. Each of the Company and its Subsidiaries is duly qualified to conduct business and is in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected
to result in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing
or seeking to revoke, limit or curtail such power and authority or qualification. The Company has no Subsidiaries other than as disclosed
in the SEC Documents.
(b) Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations under
this Agreement and each of the other Transaction Documents, and to issue the Securities in accordance with the terms hereof and thereof,
(ii) the execution and delivery of the Transaction Documents by the Company and the consummation by it of the transactions contemplated
hereby and thereby, including without limitation, the issuance of the Commitment Shares and the reservation for issuance and the issuance
of the Purchase Shares issuable under this Agreement, have been duly authorized by the Company’s Board of Directors and no further
consent or authorization is required by the Company, its Board of Directors or its stockholders, (iii) this Agreement has been, and each
other Transaction Document shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this Agreement constitutes,
and each other Transaction Document upon its execution on behalf of the Company, shall constitute, the valid and binding obligations of
the Company enforceable against the Company in accordance with their 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 creditors’ rights and remedies. The Board of Directors of the Company has approved the resolutions (the “Signing
Resolutions”) to authorize this Agreement and the transactions contemplated hereby. The Signing Resolutions are valid, in full
force and effect and have not been modified or supplemented in any respect. The Company has delivered to the Investor a true and correct
copy of a unanimous written consent adopting the Signing Resolutions executed by all of the members of the Board of Directors of the Company
or minutes of a meeting of the Board of Directors of the Company approving the Signing Resolutions. Except as set forth in this Agreement,
no other approvals or consents of the Company’s Board of Directors, any authorized committee thereof, and/or stockholders is necessary
under applicable laws and the Certificate of Incorporation and/or Bylaws to authorize the execution and delivery of this Agreement or
any of the transactions contemplated hereby, including, but not limited to, the issuance of the Commitment Shares and the issuance of
the Purchase Shares.
(c) Capitalization.
As of the date hereof, the authorized and issued capital stock of the Company is as set forth in the SEC Documents. Except as disclosed
in the SEC Documents (as defined below), (i) no shares of the Company’s capital stock are subject to preemptive rights or any other
similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding debt securities, (iii)
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, any shares of 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 shares of 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, any shares of capital stock of the Company or any of its Subsidiaries,
(iv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any
of their securities under the Securities Act (except the Registration Rights Agreement), (v) 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, (vi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered
by the issuance of the Securities as described in this Agreement and (vii) the Company does not have any stock appreciation rights or
“phantom stock” plans or agreements or any similar plan or agreement.
(d) Issuance
of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Commitment Shares
and Purchase Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights
of first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a
holder of Common Stock.
(e) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the reservation for issuance and issuance of the Purchase
Shares and the Commitment Shares) will not (i) result in a violation of the Certificate of Incorporation, any Certificate of Designations,
Preferences and Rights of any outstanding series of preferred stock of the Company or the Bylaws 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 the Company or any of its Subsidiaries is
a party, or result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws
and regulations and the rules and regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which
any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations under clause (ii), which could not reasonably be expected to result in a Material
Adverse Effect. Neither the Company nor its Subsidiaries is in violation of any term of or in default under its certificate of incorporation,
any certificate of designation, preferences and rights of any outstanding series of preferred stock of the Company or Bylaws or their
organizational charter or bylaws, respectively. Except as disclosed in the SEC Documents, neither the Company nor any of its Subsidiaries
is in violation of any term of or is in default under any material contract, agreement, mortgage, indebtedness, indenture, instrument,
judgment, decree or order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for possible conflicts,
defaults, terminations or amendments that could not reasonably be expected to have a Material Adverse Effect. The business of the Company
and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law, ordinance, regulation of any governmental
entity, except for possible violations, the sanctions for which either individually or in the aggregate could not reasonably be expected
to have a Material Adverse Effect. Except as specifically contemplated by this Agreement and the related documents and as required under
the Securities Act or applicable state securities laws and the rules and regulations of the Principal Market, the Company is not required
to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or any regulatory
or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction
Documents in accordance with the terms hereof or thereof. Except as set forth elsewhere in this Agreement, all consents, authorizations,
orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence shall be obtained or effected
on or prior to the Commencement Date. Except as set forth in the SEC Documents, since one year prior to the date hereof, the Company has
not received nor delivered any notices or correspondence from or to the Principal Market. Except as set forth in the SEC Documents, to
the Company’s knowledge, the Principal Market has not commenced any delisting proceedings against the Company.
(f) SEC
Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the 24 months
preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing
materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the
“SEC Documents”) on a timely basis or has received a valid extension of such time of filing and has filed any such
SEC Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable. None of the SEC Documents, when filed, 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. The financial statements of the
Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. The SEC has not commenced any enforcement
proceedings against the Company or any of its Subsidiaries.
(g) Absence
of Certain Changes. Except as disclosed in the SEC Documents, since June 30, 2023, there has been no material adverse change in the
business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries. The Company has not
taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company
or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or insolvency
proceedings.
(h) Absence
of Litigation. Except as set forth in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation before or
by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company or any
of its Subsidiaries, threatened against or affecting the Company, the Common Stock or any of the Company’s or its Subsidiaries’
officers or directors in their capacities as such, which could reasonably be expected to have a Material Adverse Effect.
(i) Acknowledgment
Regarding Investor’s Status. The Company acknowledges and agrees that the Investor is acting solely in the capacity of
arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company
further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with
respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the Investor or any
of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is
merely incidental to the Investor’s purchase of the Securities. The Company further represents to the Investor that the Company’s
decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives
and advisors.
(j) No
General Solicitation; No Aggregated or Integrated Offering. Neither the Company, its Subsidiaries, nor any of its 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 under the Securities Act) in connection with the offer or sale of the Securities. Neither the Company, its Subsidiaries,
nor or any of its 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 purchase any security, under circumstances that would require registration of the offer and sale of any of
the Securities under the Securities Act, whether through aggregation or integration with prior offerings or otherwise, or cause this offering
of the Securities to be aggregated or integrated with prior offerings by the Company in a manner that would require stockholder approval
pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated. The issuance and
sale of the Securities hereunder, as of the date of this Agreement, does not contravene the rules and regulations of the Principal Market.
(k) Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. Except as set
forth in the SEC Documents, none of the Company’s material trademarks, trade names, service marks, service mark registrations, service
names, patents, patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets or other intellectual
property rights have expired or terminated, or, by the terms and conditions thereof, could expire or terminate within two years from the
date of this Agreement. The Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its Subsidiaries
of any material trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks,
service mark registrations, trade secret or other similar rights of others, or of any such development of similar or identical trade secrets
or technical information by others, and there is no claim, action or proceeding being made or brought against, or to the Company’s
knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention,
copyright, license, service names, service marks, service mark registrations, trade secret or other infringement, which could reasonably
be expected to have a Material Adverse Effect.
(l) Environmental
Laws. To the Company’s best knowledge, the Company and its Subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance
with all terms and conditions of any such permit, license or approval, except where, in each of the three foregoing clauses, the failure
to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(m) Title.
Except as disclosed in the SEC Documents, the Company and its 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
its Subsidiaries, in each case free and clear of all liens, encumbrances and defects (“Liens”) and, except for such
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 its Subsidiaries and Liens for the payment of federal, state or other taxes, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and its Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are in compliance with such
exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company
and its Subsidiaries.
(n) 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 not be able 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 materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of the Company
and its Subsidiaries, taken as a whole.
(o) Regulatory
Permits. The Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their respective businesses, 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.
(p) Tax
Status. The Company and each of its Subsidiaries has made or filed all federal and state income and all other material tax returns,
reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each
of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes other
than those being disputed) and 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, except those being contested in good faith and has set aside on its books
provision reasonably adequate for the payment of all 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 know of no basis for any such claim.
(q) Transactions
With Affiliates. Except as set forth in the SEC Documents, to the Company’s best knowledge, none of the officers or directors
of the Company, the Company’s stockholders, the officers or directors of any stockholder of the Company, or any family member or
affiliate of any of the foregoing, has either directly or indirectly any interest in, or is a party to, any transaction that would be
required to be disclosed as a related party transaction pursuant to Rule 404 of Regulation S-K promulgated under the Securities Act.
(r) Application
of Takeover Protections. The Company and its Board of Directors have taken or will take prior to the Commencement Date all necessary
action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws of the state of
its incorporation which is or could become applicable to the Investor as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and the Investor’s ownership of the Securities.
(s) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents that will be timely
publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting on its behalf has provided the Investor
or its agents or counsel with any information that it believes constitutes or might constitute material, non-public information which
is not otherwise disclosed in the Registration Statement or the SEC Documents. The Company understands and confirms that the Investor
will rely on the foregoing representation in effecting purchases and sales of securities of the Company. All of the disclosure furnished
by or on behalf of the Company to the Investor regarding the Company, its business and the transactions contemplated hereby, including
the disclosure schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made,
not misleading. The press releases disseminated by the Company during the twelve (12) months preceding the date of this Agreement taken
as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading. The Company
acknowledges and agrees that the Investor neither makes nor has made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 3 hereof.
(t) Foreign
Corrupt Practices. Neither the Company, nor to the knowledge of the Company, any agent or other Person acting on behalf of the Company,
has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to
foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to
any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the
Company (or made by any Person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any
material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.
(u) DTC
Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer (FAST)
Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer (FAST)
Program.
(v) Sarbanes-Oxley.
Except as disclosed in the SEC Documents, including the weakness in internal controls, the Company is in compliance with all material
provisions of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as of the date hereof.
(w) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial advisor or
consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction
Documents. The Investor shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other
Persons for fees that may be due in connection with the transactions contemplated by the Transaction Documents.
(x) Investment
Company. The Company is not, and immediately after receipt of payment for the Securities will not be, an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.
(y) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating terminating such
registration. Except as disclosed in the SEC Documents, the Company has not, in the twelve (12) months preceding the date hereof, received
any notice from any Person to the effect that the Company is not in compliance with the listing or maintenance requirements of the Principal
Market.
(z) Auditors.
The Company’s auditors are set forth in the SEC Documents and, to the knowledge of the Company, such auditors are an independent
registered public accounting firm as required by the Securities Act.
(aa) No Market
Manipulation. The Company has not, and to its knowledge, no Person acting on its behalf has, (i) taken, directly or indirectly, any
action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company 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, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company.
(bb) Shell
Company Status. The Company is not currently an issuer identified in Rule 144(i)(1) under the Securities Act and has filed all “Form
10 information” required by Rule 144(i)(1) under the Securities Act with the SEC as of December 31, 2022.
(cc) No Disqualification
Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the
Company participating in the 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 Securities
Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to
any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification
Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised
reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
(a) Filing
of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange Act, file
with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and conditions of, the
Transaction Documents (the “Current Report”).
(b) Blue
Sky. The Company shall take all commercially reasonable action, if any, as is reasonably necessary in order to obtain an exemption
for or to register or qualify (i) the issuance of the Commitment Shares and the sale of the Purchase Shares to the Investor under this
Agreement and (ii) any subsequent resale of all Commitment Shares and all Purchase Shares by the Investor, in each case, under applicable
securities or “Blue Sky” laws of the states of the United States in such states as is reasonably requested by the Investor
from time to time, and shall provide evidence of any such action so taken to the Investor.
(c) Listing/DTC.
The Company shall as soon as practicable secure the listing of all of the Purchase Shares and Commitment Shares to be issued to the Investor
hereunder on the Principal Market (subject to official notice of issuance) and upon each other national securities exchange or automated
quotation system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable efforts to maintain, so long
as any shares of Common Stock shall be so listed, such listing of all such Securities from time to time issuable hereunder. The Company
shall use commercially reasonable efforts to maintain the listing of the Common Stock on the Principal Market and shall comply in all
respects with the Company’s reporting, filing and other obligations under the bylaws or rules and regulations of the Principal Market.
Neither the Company nor any of its Subsidiaries shall take any action that would reasonably be expected to result in the delisting or
suspension of the Common Stock on the Principal Market. The Company shall promptly, and in no event later than four (4) Business Days,
provide to the Investor copies of any notices it receives from any Person regarding the continued eligibility of the Common Stock for
listing on the Principal Market; provided, however, that the Company shall not provide the Investor copies of any such notice that the
Company reasonably believes constitutes material non-public information, and the Company would not be required to publicly disclose such
notice in any report or statement filed with the SEC under the Exchange Act (including on Form 8-K) or the Securities Act. The Company
shall pay all fees and expenses in connection with satisfying its obligations under this Section 5(c). The Company shall take all
action necessary to ensure that its Common Stock can be transferred electronically as DWAC Shares.
(d) Prohibition
of Short Sales and Hedging Transactions. The Investor agrees that beginning on the date of this Agreement and ending on the date of
termination of this Agreement as provided in Section 11, the Investor and its agents, representatives and affiliates shall not
in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined in Rule
200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with
respect to the Common Stock.
(e) Taxes.
The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery of any
shares of Common Stock to the Investor made under this Agreement.
(f) Aggregation.
From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company shall use its reasonable
best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers or sales of any security or
solicit any offers to purchase any security, under circumstances that would cause this offering of the Securities by the Company to the
Investor to be aggregated with other offerings by the Company in a manner that would require stockholder approval pursuant to the rules
of the Principal Market on which any of the securities of the Company are listed or designated, unless stockholder approval is obtained
before the closing of such subsequent transaction in accordance with the rules of such Principal Market.
(g) Use
of Proceeds. The Company will use the net proceeds from the offering for any corporate purpose at the sole discretion of the Company.
(h) Other
Transactions. During the term of this Agreement, the Company shall not enter into, announce or recommend to its stockholders any agreement,
plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability
or right of the Company to perform its obligations under the Transaction Documents, including, without limitation, the obligation of the
Company to deliver the Purchase Shares and the Commitment Shares to the Investor in accordance with the terms of the Transaction Documents.
(i) Integration.
From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company shall use its reasonable
best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers or sales of any security or
solicit any offers to purchase any security, under circumstances that would require registration of the offer and sale of any of the Securities
under the Securities Act.
(j) If
within 24 months of the Commencement Date the Company seeks to enter into an Equity Credit Line or another agreement for the sale of securities
with a structure comparable to the structure in this Agreement, the Company will first negotiate in good faith with Buyer as to the terms
and conditions of such agreement.
| 6. | TRANSFER AGENT INSTRUCTIONS. |
On the earlier of (i) the
Commencement Date and (ii) such time that the Investor shall request, provided all conditions of Rule 144 under the Securities Act are
met, the Company shall, no later than three (3) Business Days following the delivery by the Investor to the Company or the Transfer Agent
of one or more legended certificates or book-entry statements representing the Commitment Fee shares and/or which certificates or book-entry
statement(s) the Investor shall promptly deliver on or prior to the first to occur of the events described in clauses (i) and (ii) of
this sentence), as directed by the Investor, issue and deliver (or cause to be issued and delivered) to the Investor, as requested by
the Investor, either: (A) a certificate or book-entry statement representing such Commitment Shares that is free from all restrictive
and other legends or (B) a number of shares of Common Stock equal to the number of Commitment Shares represented by the certificate(s)
or book-entry statement(s) so delivered by the Investor as DWAC Shares. The Company shall take all actions to carry out the intent and
accomplish the purposes of the immediately preceding sentence, including, without limitation, delivering all such legal opinions, consents,
certificates, resolutions and instructions to the Transfer Agent, and any successor transfer agent of the Company, as may be requested
from time to time by the Investor or necessary or desirable to carry out the intent and accomplish the purposes of the immediately preceding
sentence. On the Commencement Date, the Company shall issue to the Transfer Agent, and any subsequent transfer agent, (i) irrevocable
instructions in the form substantially similar to those used by the Investor in substantially similar transactions (the “Commencement
Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness of the Registration Statement in the form attached
as an exhibit to the Registration Rights Agreement (the “Notice of Effectiveness of Registration Statement”), in each
case to issue the Commitment Shares and the Purchase Shares in accordance with the terms of this Agreement and the Registration Rights
Agreement. All Purchase Shares to be issued from and after Commencement to or for the benefit of the Investor pursuant to this Agreement
shall be issued only as DWAC Shares. The Company represents and warrants to the Investor that, while this Agreement is effective, no instruction
other than the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement referred
to in this Section 6(b) will be given by the Company to the Transfer Agent with respect to the Commitment Shares or the Purchase
Shares from and after Commencement, and the Commitment Shares, and the Purchase Shares covered by the Registration Statement shall otherwise
be freely transferable on the books and records of the Company. The Company agrees that if the Company fails to fully comply with the
provisions of this Section 6(b) within five (5) Business Days of the Investor providing the deliveries referred to above, the Company
shall, at the Investor’s written instruction, purchase such shares of Common Stock containing the Restrictive Legend from the Investor
at the greater of the (i) Purchase Price paid for such shares of Common Stock (as applicable) and (ii) the Closing Sale Price of the Common
Stock on the date of the Investor’s written instruction.
| 6. | CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE |
SALES OF SHARES
OF COMMON STOCK.
The right of the Company
hereunder to commence sales of the Purchase Shares as of the Commencement Date is subject to the satisfaction of each of the following
conditions:
(a) The
Investor shall have executed each of the Transaction Documents and delivered the same to the Company;
(b) The
Registration Statement covering the resale of the Commitment Shares and Purchase Shares shall have been declared effective under the Securities
Act by the SEC and no stop order with respect to the Registration Statement shall be pending or threatened by the SEC;
(c) All
Securities to be issued by the Company to the Investor under the Transaction Documents shall have been approved for listing on the Principal
Market in accordance with the applicable rules and regulations of the Principal Market, subject only to official notice of issuance; and
(d) The
representations and warranties of the Investor shall be true and correct in all material respects as of the date hereof and as of the
Commencement Date as though made at that time.
| 7. | CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK. |
The obligation of the Investor
to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following conditions on or prior to the Commencement
Date and, once such conditions have been initially satisfied, there shall not be any ongoing obligation to satisfy such conditions after
the Commencement has occurred:
The Company shall have executed
each of the Transaction Documents and delivered the same to the Investor;
(a) The
Company shall have issued or caused to be issued to the Investor (i) one or more certificates or book entry statements representing the
Commitment Shares or (ii) a number of shares of Common Stock equal to the number of Commitment Shares as DWAC Shares, in accordance with
Section 6;
(b) The
Common Stock shall be listed or quoted on the Principal Market, trading in the Common Stock shall not have been suspended by the SEC or
the Principal Market within the last 365 days, and all Securities to be issued by the Company to the Investor pursuant to this Agreement
shall have been approved for listing or quotation on the Principal Market in accordance with the applicable rules and regulations of the
Principal Market, as then in effect, subject only to official notice of issuance;
(c) The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section 4 above, in which case, such representations and
warranties shall be true and correct without further qualification) as of the date hereof and as of the Commencement Date as though made
at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such date)
and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date. The Investor shall have received
a certificate, executed by the CEO, President or CFO of the Company, dated as of the Commencement Date, to the foregoing effect in the
form attached hereto as Exhibit A;
(d) The
Board of Directors of the Company shall have adopted resolutions in the form previously provided to the Investor which shall be in full
force and effect without any amendment or supplement thereto as of the Commencement Date;
(e) The
Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement each shall have been delivered
to and acknowledged in writing by the Company and the Company’s Transfer Agent (or any successor transfer agent);
(h) The
Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as of the
Commencement Date, in the form attached hereto as Exhibit B;
(i) The
Registration Statement covering the resale of the Commitment Shares and Purchase Shares shall have been declared effective under the Securities
Act by the SEC and no stop order with respect to the Registration Statement shall be pending or threatened by the SEC. The Company shall
have prepared and filed with the SEC, not later than two (2) Business Days after the effective date of the Registration Statement, a final
and complete prospectus (the preliminary form of which shall be included in the Registration Statement) and shall have delivered to the
Investor a true and complete copy thereof. Such prospectus shall be current and available for the resale by the Investor of all of the
Securities covered thereby. The Current Report shall have been filed with the SEC, as required pursuant to Section 5(a). All reports,
schedules, registrations, forms, statements, information and other documents required to have been filed by the Company with the SEC at
or prior to the Commencement Date pursuant to the reporting requirements of the Exchange Act shall have been filed with the SEC within
the applicable time periods prescribed for such filings under the Exchange Act;
(j) No
Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;
(k) All
federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction Documents
and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated
thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and orders of, and all filings
and registrations with, all federal, state and local courts or governmental agencies and all federal, state and local regulatory or self-regulatory
agencies necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions contemplated
thereby in accordance with the terms thereof shall have been obtained or made, including, without limitation, in each case those required
under the Securities Act, the Exchange Act, applicable state securities or “Blue Sky” laws or applicable rules and regulations
of the Principal Market, or otherwise required by the SEC, the Principal Market or any state securities regulators;
(l) No
statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed by
any federal, state, local or foreign court or governmental authority of competent jurisdiction which prohibits the consummation of or
which would materially modify or delay any of the transactions contemplated by the Transaction Documents; and
(m) No
action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign governmental
authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers, directors or
affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction Documents, or seeking
material damages in connection with such transactions.
In consideration of the Investor’s
execution and delivery of the Transaction Documents and acquiring the Securities hereunder and in addition to all of the Company’s
other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and hold harmless the Investor and all
of its affiliates, stockholders, officers, directors, members, managers, employees and direct or indirect investors and any of the foregoing
Person’s 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 (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement or obligation of the Company
contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, or (c) any cause
of action, suit or claim brought or made against such Indemnitee and arising out of or resulting from the execution, delivery, performance
or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, other than,
in the case of clause (c), with respect to Indemnified Liabilities which directly and primarily result from the fraud, gross negligence
or willful misconduct of an Indemnitee. The indemnity in this Section 9 shall not apply to amounts paid in settlement of any claim
if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned
or delayed. 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.
Payment under this indemnification shall be made within thirty (30) days from the date the Investor makes written request for it. A certificate
containing reasonable detail as to the amount of such indemnification submitted to the Company by the Investor shall be conclusive evidence,
absent manifest error, of the amount due from the Company to the Investor. If any action shall be brought against any Indemnitee in respect
of which indemnity may be sought pursuant to this Agreement, such Indemnitee shall promptly notify the Company in writing, and the Company
shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Indemnitee. Any Indemnitee
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of such Indemnitee, except to the extent that (i) the employment thereof has been specifically authorized
by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel
or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between
the position of the Company and the position of such Indemnitee, in the case of clauses (i),(ii) and (iii) the Company shall be responsible
for the reasonable fees and expenses of no more than one such separate counsel.
An “Event
of Default” shall be deemed to have occurred at any time as any of the following events occurs:
(a) the
effectiveness of a registration statement registering the resale of the Securities lapses for any reason (including, without limitation,
the issuance of a stop order or similar order) or such registration statement (or the prospectus forming a part thereof) is unavailable
to the Investor for resale of any or all of the Securities to be issued to the Investor under the Transaction Documents, and such lapse
or unavailability continues for a period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business Days
in any 365-day period, but excluding a lapse or unavailability where (i) the Company terminates a registration statement after the Investor
has confirmed in writing that all of the Securities covered thereby have been resold or (ii) the Company supersedes one registration statement
with another registration statement, including (without limitation) by terminating a prior registration statement when it is effectively
replaced with a new registration statement covering Securities (provided in the case of this clause (ii) that all of the Securities covered
by the superseded (or terminated) registration statement that have not theretofore been resold are included in the superseding (or new)
registration statement);
(b) the
suspension of the Common Stock from trading on the Principal Market for a period of one (1) Business Day, provided that the Company may
not direct the Investor to purchase any shares of Common Stock during any such suspension;
(c) the
delisting of the Common Stock from The NYSE American, provided, however, that the Common Stock is not immediately thereafter trading on
the New York Stock Exchange, The Nasdaq Global Market, The Nasdaq Global Select Market, the NYSE Arca, the OTC Bulletin Board, the OTCQX
operated by the OTC Markets Group, Inc., the OTCQB operated by the OTC Markets Group, Inc. or such other nationally recognized trading
market (or nationally recognized successor to any of the foregoing);
(d) If
at any time after the Commencement Date, the Exchange Cap is reached unless and until stockholder approval is obtained pursuant to the
termsf hereof. The Exchange Cap shall be deemed to be reached at such time if, upon submission of a Purchase Notice under this Agreement,
the issuance of such shares of Common Stock would exceed that number of shares of Common Stock which the Company may issue without breaching
the Company’s obligations under the rules or regulations of the Principal Market;
(e) the
failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor within three (3) Business Days after the applicable
Purchase Date on which the Investor is entitled to receive such Purchase Shares;
(f) the
Company breaches any representation, warranty, covenant or other term or condition under any Transaction Document if such breach could
have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable, only if such breach continues
for a period of at least five (5) Business Days;
(g) if
any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;
(h) if
the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the entry of an
order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally unable to pay its debts as the
same become due;
(i) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company in an involuntary
case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders the liquidation of the
Company or any Subsidiary; or
(j) if
at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares.
So long as an Event of Default
has occurred and is continuing, or if any event which, after notice and/or lapse of time, would become an Event of Default, has occurred
and is continuing, the Company shall not deliver to the Investor any Purchase Notice.
This Agreement may
be terminated only as follows:
(a) If
pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against
the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general
assignment for the benefit of its creditors (any of which would be an Event of Default as described in Sections 10(g), 10(h)
and 10(i) hereof), this Agreement shall automatically terminate without any liability or payment to the Company (except as set
forth below) without further action or notice by any Person.
(b) In
the event that the Commencement shall not have occurred on or before December 31, 2023, due to the failure to satisfy the conditions set
forth in Sections 7 and 8 above with respect to the Commencement, either the Company or the Investor shall have the option
to terminate this Agreement at the close of business on such date or thereafter without liability of any party to any other party (except
as set forth below); provided, however, that the right to terminate this Agreement under this Section 11(b) shall not be available
to any party if such party is then in breach of any covenant or agreement contained in this Agreement or any representation or warranty
of such party contained in this Agreement fails to be true and correct such that the conditions set forth in Section 7(d) or Section
8(e), as applicable, could not then be satisfied.
(c) At
any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason by
delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement without any
liability whatsoever of any party to any other party under this Agreement (except as set forth below). The Company Termination Notice
shall not be effective until one (1) Business Day after it has been received by the Investor.
(d) This
Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available Amount as provided
herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other party under
this Agreement (except as set forth below).
(e) If,
for any reason or for no reason, the full Available Amount has not been purchased in accordance with Section 2 of this Agreement
by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part of any
party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).
Except as set forth in Sections
11(a) (in respect of an Event of Default under Sections 10(g), 10(h) and 10(i)), 11(d) and 11(e),
any termination of this Agreement pursuant to this Section 11 shall be effected by written notice from the Company to the Investor,
or the Investor to the Company, as the case may be, setting forth the basis for the termination hereof. The representations and warranties
and covenants of the Company and the Investor contained in Sections 3, 4, 5, and 6 hereof, the indemnification
provisions set forth in Section 9 hereof and the agreements and covenants set forth in Sections 10, 11 and 12
shall survive the Commencement and any termination of this Agreement. No termination of this Agreement shall (i) affect the Company’s
or the Investor’s rights or obligations under (A) this Agreement with respect to pending Purchases and the Company and the Investor
shall complete their respective obligations with respect to any pending Purchases under this Agreement and (B) the Registration Rights
Agreement, which shall survive any such termination, or (ii) be deemed to release the Company or the Investor from any liability for intentional
misrepresentation or willful breach of any of the Transaction Documents.
(a) Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative rights
of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation of this
Agreement and the other Transaction Documents 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 State of New York, Borough of Manhattan, for the adjudication of any dispute
hereunder or under the other Transaction Documents or in connection herewith or therewith, or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or
that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents
to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices
to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile signature
or signature delivered by e-mail in a “.pdf” format data file shall be considered due execution and shall be binding upon
the signatory thereto with the same force and effect as if the signature were an original signature.
(c) Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this Agreement.
(d) Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any
provision of this Agreement in any other jurisdiction.
(e) Entire
Agreement. The Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company, their
affiliates and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement, the other Transaction Documents
and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein
and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant
or undertaking with respect to such matters. The Company acknowledges and agrees that is has not relied on, in any manner whatsoever,
any representations or statements, written or oral, other than as expressly set forth in the Transaction Documents.
(f) Notices.
Any notices, consents 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 facsimile or email (provided
confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one Business
Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the party to receive the
same. The addresses for such communications shall be:
If to the Company:
FOXO Technologies,
Inc.
729 N. Washington
Avenue, Suite 600
Minneapolis, MN 55401
With a copy to
(which shall not constitute notice or service of process):
Mitchell Silberberg & Knupp LLP
2049 Century Park
East, 18th FL
Los Angeles, CA 90064
Email:
If to the Investor:
ClearThink Capital
Partners, LLC
10 Times Square,
5th FL
New York, NY 10018
| E-mail: | nyc@clearthink.capital |
If to the Transfer
Agent:
Continental Stock
Transfer
1 State Street, 30th
FL
New York, NY 10004
| Email: | cstmail@continentalstock.com |
or at such other address and/or
facsimile number and/or to the attention of such other Person as the recipient party has specified by written notice given to each other
party three (3) Business Days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of
such notice, consent or other communication, (B) mechanically or electronically generated by the sender’s facsimile machine or email
account containing the time, date, and recipient facsimile number or email address, as applicable, and an image of the first page of such
transmission or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile, email or receipt from a nationally recognized overnight delivery 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.
The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investor,
including by merger or consolidation. The Investor may not assign its rights or obligations under this Agreement.
(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
(i) Publicity.
The Company shall afford the Investor and its counsel with the opportunity to review and comment upon, shall consult with the Investor
and its counsel on the form and substance of, and shall give due consideration to all such comments from the Investor or its counsel on,
any press release, SEC filing or any other public disclosure by or on behalf of the Company relating to the Investor, its purchases hereunder
or any aspect of the Transaction Documents or the transactions contemplated thereby, not less than 24 hours prior to the issuance, filing
or public disclosure thereof. The Investor must be provided with a final version of any such press release, SEC filing or other public
disclosure at least 24 hours prior to any release, filing or use by the Company thereof; provided however, that the Company’s obligations
pursuant to this Section 12(i) shall not apply if the form and substance of such press release, SEC filing, or other public disclosure
relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated thereby
previously have been publicly disclosed by the Company in compliance with this Section 12(i). The Company agrees and acknowledges
that its failure to fully comply with this provision constitutes a Material Adverse Effect.
(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 the other party may reasonably request in order to
consummate and make effective, as soon as reasonably possible, the Commencement, and to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
(k) No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Investor that it has
not engaged any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Investor
represents and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection
with the transactions contemplated hereby. The Company shall be responsible for the payment of any fees or commissions, if any, of any
financial advisor, placement agent, broker or finder relating to or arising out of the transactions contemplated hereby. The Company shall
pay, and hold the Investor harmless against, any liability, loss or expense (including, without limitation, attorneys’ fees and
out of pocket expenses) arising in connection with any such claim.
(l) No
Strict 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.
(m) Remedies,
Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement, including,
without limitation, the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all other remedies available
to the Investor under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief),
no remedy of the Investor contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and nothing
herein shall limit the Investor’s right to pursue actual damages for any failure by the Company to comply with the terms of this
Agreement. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Investor and that
the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened
breach, the Investor shall be entitled, in addition to all other available remedies, to an injunction restraining any breach, without
the necessity of showing economic loss and without any bond or other security being required.
(n) Enforcement
Costs. If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced by the Investor
through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization, receivership or
other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) an attorney is retained to represent
the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company shall pay to the Investor, as incurred
by the Investor, all reasonable costs and expenses including attorneys’ fees incurred in connection therewith, in addition to all
other amounts due hereunder.
(o) Amendment
and Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement may be amended or waived by the parties from and after
the date that is one (1) Business Day immediately preceding the filing of the Registration Statement with the SEC. Subject to the immediately
preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument signed by both parties hereto
and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement
of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
(p) Adjustments
for Share Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement shall be adjusted to
take into account any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction effected with respect
to the Common Stock except as specifically stated herein.
** Signature Page Follows
**
IN WITNESS WHEREOF,
the Investor and the Company have caused this Agreement to be duly executed as of the date first written above.
| |
THE COMPANY: |
| |
|
| |
FOXO TECHNOLOGIES, INC. |
| |
By: |
/s/ Mark White |
| |
Name: |
Mark White |
| |
Title: |
CEO |
| |
INVESTOR: |
| |
|
| |
CLEARTHINK CAPITAL PARTNERS, LLC |
| |
By: |
/s/ Brian Loper |
| |
Name: |
Brian Loper |
| |
Title: |
Authorized Person |
EXHIBITS
| Exhibit A |
|
Form of Officer’s Certificate |
| Exhibit B |
|
Form of Secretary’s Certificate |
EXHIBIT A
FORM OF OFFICER’S
CERTIFICATE
This Officer’s Certificate
(“Certificate”) is being delivered pursuant to Section 8(e) of that certain Agreement, dated October __,2023,
to the Purchase Agreement dated as of October 10, 2023, (“Purchase Agreement”), by and between FOXO Technologies,
Inc., a Delaware corporation (the “Company”), and CLEARTHINK CAPITAL PARTNERS, LLC (the “Investor”).
Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.
The undersigned, ___________,
______________ of the Company, hereby certifies, on behalf of the Company and not in his individual capacity, as follows:
1. I
am the _____________ of the Company and make the statements contained in this Certificate;
2. The
representations and warranties of the Company in the Purchase Agreement are true and correct in all material respects (except to the extent
that any of such representations and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement, in which
case, such representations and warranties are true and correct without further qualification) as of the date when made and as of the Commencement
Date as though made at that time (except for representations and warranties that speak as of a specific date, in which case such representations
and warranties are true and correct as of such date);
3. The
Company has performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.
4. The
Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor
does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy or insolvency proceedings.
IN WITNESS WHEREOF,
I have hereunder signed my name on this ___ day of ___________.
The undersigned as Secretary
of FOXO Technologues., a Delaware corporation, hereby certifies that ___________ is the duly elected, appointed, qualified and
acting ________ of _________ and that the signature appearing above is his genuine signature.
EXHIBIT B
FORM OF SECRETARY’S
CERTIFICATE
This Secretary’s Certificate
(“Certificate”) is being delivered pursuant to Section 8(k) of that certain Agreement, dated October __,2023, to the
Purchase Agreement dated as of October 10, 2023 (“Purchase Agreement”), by and between FOXO Technologies, Inc., a Delaware
corporation (the “Company”) and CLEARTHINK CAPITAL PARTNERS, LLC (the “Investor”), pursuant to which the
Company may sell to the Investor up to Ten Million Dollars ($10,000,000) of the Company’s Common Stock, $0.0001 par value per share
(the “Common Stock”). Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase
Agreement.
The undersigned, ____________,
Secretary of the Company, hereby certifies, on behalf of the Company and not in his individual capacity, as follows:
1. I
am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.
2. Attached
hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s Bylaws (“Bylaws”)
and Certificate of Incorporation (“Charter”), in each case, as amended through the date hereof, and no action has been taken
by the Company, its directors, officers or stockholders, in contemplation of the filing of any further amendment relating to or affecting
the Bylaws or Charter.
3. Attached
hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company
on _____________, at which a quorum was present and acting throughout. Such resolutions have not been amended, modified or rescinded and
remain in full force and effect and such resolutions are the only resolutions adopted by the Company’s Board of Directors, or any
committee thereof, or the stockholders of the Company relating to or affecting (i) the entering into and performance of the Purchase Agreement,
or the issuance, offering and sale of the Purchase Shares and the Commitment Shares and (ii) and the performance of the Company of its
obligation under the Transaction Documents as contemplated therein.
4. As
of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.
IN WITNESS WHEREOF,
I have hereunder signed my name on this ___ day of ____________.
_________________________
Secretary
The undersigned as ___________
of FOXO Technologies, Inc., a Delaware corporation, hereby certifies that ____________ is the duly elected, appointed, qualified
and acting Secretary of _________, and that the signature appearing above is his genuine signature.
B-1
