“Trademarks” has the meaning specified in the definition of Intellectual Property.

“Trading Day” means any day on which (i) there is no Market Disruption Event and (ii) the NYSE or, if the Common Stock is not listed on the NYSE, the principal national securities exchange on which the Common Stock is listed, is open for trading or, if the Common Stock is not so listed, admitted for trading or quoted, any Business Day. A Trading Day only includes those days that have a scheduled closing time of 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the relevant exchange or trading system.

“Transaction Expenses” shall mean any fees, costs, or expenses incurred, paid or payable by the Issuer or any of their respective Affiliates in connection with the Transactions, this Agreement and the other Note Documents and the transactions contemplated hereby and thereby.

“Transactions” shall mean, collectively, the transactions constituting or contemplated by this Agreement and the other Note Documents and any prepayment, repayment, repurchase, prepayment,

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conversion or defeasance of Indebtedness of the Issuer in connection therewith and any other transactions (including any amendment or consent under the FP Note Purchase Agreement and the LM/BP Note Purchase Agreement) in connection with the foregoing (including in connection with the payment of the fees, costs and expenses incurred in connection with any of the foregoing (including the Transaction Expenses)).

“Treasury Regulations” means the regulations, including temporary regulations, promulgated by the United States Treasury Department under the Internal Revenue Code, as such regulations may be amended from time to time (including the corresponding provisions of any future regulations).

“Trigger Event” has the meaning specified in Section 2.11(l).

“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect in the State of New York; provided, that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof or of the other Note Documents relating to such perfection, effect of perfection or non-perfection or priority.

“United States” and “U.S.” mean the United States of America.

“U.S. Subsidiary” means any Subsidiary that is organized under the laws of any state of the United States or the District of Columbia.

“Voting Stock” means, with respect to any Person, Equity Interests issued by such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of such a contingency.

“VWAP” per share of Common Stock on any Trading Day means the per share volume-weighted average price as displayed under the heading Bloomberg VWAP on Bloomberg (or, if Bloomberg ceases to publish such price, any successor service reasonably chosen by the Issuer) page “LLAP <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the open of trading on the relevant Trading Day until the close of trading on such Trading Day (or if such volume-weighted average price is unavailable, the market price of one share of Common Stock on such Trading Day determined, using a volume-weighted average method, by an independent financial advisor retained by the Issuer for such purpose).

“Warrant” or “Warrants” have the meanings specified in Section 3.01.

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“WC Intercreditor Agreement” has the meaning specified in Section 9.01(q).

“Wholly-Owned Subsidiary” means any Person 100% of whose Equity Interests are at the time owned by the Issuer directly or indirectly through other Persons 100% of whose Equity Interests are at the time owned, directly or indirectly, by the Issuer.

“Withholding Agent” means any Note Party, and any other Person required by applicable Law to withhold or deduct amounts from a payment made by or on account of any obligation of any Note Party under any Note Document.

“Working Capital Facility” has the meaning specified in Section 9.03(g).

“Working Capital Facility Lender” has the meaning specified in Section 9.01(q).

“Working Capital Priority Collateral” has the meaning specified in Section 9.01(q).

“Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.

1.02 Other Interpretive Provisions.

With reference to this Agreement and each other Note Document, unless otherwise specified herein or in such other Note Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including the Note Documents and any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, modified, extended, restated, replaced or supplemented from time to time (subject to any restrictions set forth herein or in any other Note Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “hereto”, “herein,” “hereof” and “hereunder,” and words of similar import when used in any Note Document, shall be construed to refer to such Note Document in its entirety and not to any particular provision thereof, (iv) all references in an Note Document to Articles, Sections, Preliminary Statements, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Preliminary Statements, Exhibits and Schedules to, the Note Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified, extended, restated, replaced or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all real and personal property and tangible and intangible assets and properties, including cash, securities, accounts, contract rights and Intellectual Property.

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(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c) Section headings herein and in the other Note Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Note Document.

(d) Any reference herein to a merger, transfer, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, shall be deemed to apply to a division of or by a limited liability company, or an allocation of assets to a series of a limited liability company (or the unwinding of such a division or allocation), as if it were a merger, transfer, amalgamation, consolidation, assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person. Any division of a limited liability company shall constitute a separate Person hereunder (and each division of any limited liability company that is a Subsidiary, joint venture or any other like term shall also constitute such a Person or entity).

1.03 Accounting Terms.

(a) Generally. Except as otherwise specifically prescribed herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the financial statements delivered in accordance with Section 8.01, except as otherwise specifically prescribed herein; provided, however, that, calculations of Attributable Indebtedness under any Synthetic Lease or the implied interest component of any Synthetic Lease shall be made by the Issuer in accordance with accepted financial practice and consistent with the terms of such Synthetic Lease. Notwithstanding the foregoing, for purposes of determining compliance with any covenant contained herein, Indebtedness of the Issuer and its Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB ASC 825 and FASB ASC 470-20, on financial liabilities shall be disregarded.

(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial requirement set forth in any Note Document, and either the Issuer or the Required Purchasers shall so request, the Purchasers and Issuer shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Purchasers); provided, that, until so amended, (i) such requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Issuer shall provide to the Purchasers financial statements and other documents required under this Agreement or as requested hereunder setting forth a reconciliation between calculations of such requirement made before and after giving effect to such change in GAAP. Notwithstanding any other provision contained in this Agreement, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any change to GAAP occurring before or after the Closing Date as a result of ASU 2016-02, Leases (Topic 842) issued by the Financial Accounting Standards Board or any other proposals issued by the Financial Accounting Standards Board in connection therewith, in each case if such change would require treating any lease (or similar arrangement conveying the right to use) as a capital lease where such lease (or similar arrangement) was not required to be so treated under GAAP as in effect prior to such change.

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(c) Consolidation of Variable Interest Rate Entities. All references herein to consolidated financial statements of the Issuer and its Subsidiaries or to the determination of any amount for the Issuer and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Issuer is required to consolidate pursuant to FASB ASC 810 as if such variable interest entity was a Subsidiary as defined herein.

1.04 Times of Day.

Unless otherwise specified, all references herein to times of day shall be references to United States Eastern time (daylight or standard, as applicable).

Article II
CONVERTIBLE NOTES

2.01 Authorization and Issuance of Convertible Notes. The Issuer has duly authorized the issuance, sale and delivery of its Senior Secured Convertible Notes due 2027 in the aggregate principal amount of $100,000,000, to be dated the Closing Date, to mature on the Maturity Date, and to be substantially in the form of Exhibit A hereto (all such notes originally issued pursuant to this Section 2.01, or delivered in substitution or exchange for any thereof, being collectively called the “Convertible Notes” and individually an “Convertible Note”). Notwithstanding anything to the contrary set forth herein, the Convertible Notes will, upon the occurrence of the Closing Date, be immediately separable and transferable.

2.02 [Reserved].

2.03 Issuance and Sale of Convertible Notes. Subject to the terms and conditions set forth in this Agreement, on the Closing Date, the Issuer will issue and sell the Convertible Notes to each of the Purchasers, severally and not jointly, and each of the Purchasers, severally and not jointly, shall purchase from the Issuer the Convertible Notes to be purchased by each of them, in each case in amounts equal, with respect to each Purchaser, to the respective amounts set forth opposite such Purchaser’s name on Schedule I attached hereto, and in each case for the purchase price set forth opposite such Purchaser’s name on Schedule I attached hereto.

2.04 Convertible Notes. The Convertible Notes issued pursuant hereto shall evidence the principal amounts of all Convertible Notes sold hereunder, and the date and principal amount of each purchase and the sale of the Convertible Notes to the Purchasers by the Issuer, as well as each payment or prepayment made on account of the principal thereof, and each addition of an interest amount to the principal balance thereof upon a PIK Election, and, in each case, the resulting aggregate unpaid principal balance thereof, shall be recorded by the Issuer on its books; provided, that failure by the Issuer to make any such recordation shall not affect the obligations of the Issuer hereunder or under any Convertible Note. Each such recordation by the Issuer shall be conclusive and binding for all purposes in the absence of manifest error.

2.05 Closing Date. The sale and delivery of the Convertible Notes to be issued pursuant to Section 2.01 shall take place remotely via the electronic exchange of documents and signatures on the Closing Date (or such other time and place as the parties shall agree). On the Closing Date, subject to satisfaction of the conditions set forth herein, the Issuer will deliver to each Purchaser a Convertible Note or Convertible Notes registered in such Purchaser’s name or in the name of its nominee, such Convertible Notes to be duly executed and dated the Closing Date, in the aggregate principal amount of the Convertible

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Notes allocated to such Purchaser as set forth opposite such Purchaser’s name on Schedule I attached hereto, such Convertible Notes to be in such denominations as such Purchaser may specify by two Business Days’ prior written notice to the Issuer (or, in the absence of such notice, one Convertible Note registered in such Purchaser’s name in such aggregate principal amount), against such Purchaser’s delivery to the Issuer of immediately available funds in the amount of such Purchaser’s portion of the aggregate purchase price of the Convertible Notes so purchased.

2.06 [Reserved].

2.07 Prepayments/Commitment Reductions.

(a) Voluntary Prepayments. Subject to Section 8.11 of each of the LM/BP Note Purchase Agreement and the FP Note Purchase Agreement:

(i) Except as provided in Section 2.07(a)(iii) below, the Issuer may not voluntarily prepay, in whole or in part, the Convertible Notes prior to May 1, 2024, unless approved in writing by Lockheed Martin.

(ii) From and after May 1, 2024, so long as (x) unless the proposed prepayment would result in a repayment in full of the Convertible Notes, no Event of Default has occurred and is continuing, and (y) the Equity Issuance Conditions are satisfied as of the Prepayment Date, the Issuer may voluntarily prepay the Convertible Notes, in whole or in part, in cash at a price equal to 100% of the then applicable principal amount thereof plus accrued and unpaid interest to, but not including, the Prepayment Date; provided, that (A) written notice (a “Prepayment Notice”) specifying such voluntary prepayment must be delivered by the Issuer and received by the Purchasers not later than 11:00 a.m. on the date that is not less than twenty (20) Business Days prior to the Prepayment Date, and (B) any such prepayment shall be in a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof (or, if less, the entire principal amount thereof then outstanding); provided, further that any Prepayment Notice may be conditioned upon the happening or occurrence of a specified event, and thereafter revoked in the event that such specified event does not occur.

(iii) Notwithstanding the foregoing, upon the occurrence of a Fundamental Change, so long as the Equity Issuance Conditions are satisfied as of the Prepayment Date, the Issuer may, upon delivery of a Prepayment Notice to the Purchasers, voluntarily prepay the Convertible Notes, in whole but not in part, in cash at a price equal to 100% of the then applicable principal amount thereof plus accrued and unpaid interest to, but not including, the Prepayment Date; provided, that, any Prepayment Notice must be received by the Purchasers (x) not more than thirty (30) days after the occurrence of the Fundamental Change and (y) not later than 11:00 a.m. on the date that is not less than twenty (20) Business Days and not more than sixty (60) days prior to the Prepayment Date. For the avoidance of doubt, notice can be given before the occurrence of a Fundamental Change and can be conditioned upon the occurrence of Fundamental Change.

(iv) Each Prepayment Notice delivered pursuant to clauses (ii) and (iii) above shall specify the date and amount of such prepayment (the “Prepayment Date”) and, in the case of a prepayment pursuant to clause (ii), the principal amount of Convertible Notes proposed to be prepaid. Subject to compliance with the conditions set forth in clauses (ii) and (iii) above, as applicable, the Issuer shall make such prepayment and the payment amount specified in the Prepayment Notice shall be due and payable on the Prepayment Date (subject to the satisfaction or waiver of such conditions regarding the prepayment of indebtedness or the consummation of a specified transaction, in each case, to the extent

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specified in the Prepayment Notice). Except as provided in clause (v) below, any prepayment pursuant to this Section 2.07(a) shall be accompanied by (x) all accrued interest on the principal amount of the Convertible Notes prepaid and (y) all fees, costs, expenses, indemnities and other amounts due and payable hereunder at the time of prepayment. Each such prepayment shall be applied first to all costs, expenses, indemnities and other amounts due and payable hereunder, then to payment of default interest, if any, then to payment of accrued interest and thereafter to the payment of principal. Each such prepayment shall be applied to the Convertible Notes of the Purchasers in accordance with their respective pro rata share in respect of each of the Convertible Notes.

(v) If, as of any proposed Prepayment Date, the Equity Issuance Conditions cannot be or are not satisfied, the Issuer may, at its election and upon notice to the Purchasers in accordance with Section 12.02 hereof, (1) rescind the applicable Prepayment Notice, (2) delay the proposed Prepayment Date until such date as the Equity Issuance Conditions are satisfied (provided, that, without the consent of the Purchasers, such delay may not exceed 90 days from the originally proposed Prepayment Date), including for the purpose of making or allowing the Issuer and/or the Purchasers to make any Antitrust Filings and to observe any waiting periods that may be required with respect thereto or (3) prepay the Convertible Notes at a price equal to the Share Settlement Value; provided, that, if the Equity Issuance Conditions cannot be or are not satisfied on the date that is 91 days after the originally proposed Prepayment Date solely as a result of any consents or approvals under any Antitrust Laws that have not been obtained, then the Issuer must (x) rescind the applicable Prepayment Notice or (y) prepay the Convertible Notes at a price equal to 85% of the Share Settlement Value.

(vi) In the event that the Issuer elects to voluntarily prepay all or any portion of a Purchaser’s Convertible Notes pursuant to this Section 2.07(a), such Purchaser shall have the right to convert all or any portion of its Convertible Notes in accordance with the terms of Section 2.11 at any time prior to the close of business on the Business Day immediately preceding the related Prepayment Date, after which time such right to convert will expire.

(b) [Reserved].

(c) Termination or Material Breach of Strategic Cooperation Agreement. In the event of (a) a termination of the Strategic Cooperation Agreement other than by the Issuer due to an uncured breach by Lockheed Martin or (b) a breach in any material respect by the Issuer of the Strategic Cooperation Agreement (it being understood that, among other things, any breach of Sections 2.2, 2.6 or 15 of the Strategic Cooperation Agreement shall constitute a material breach) that is not cured (to the extent capable of being cured) within 90 days after the earlier to occur of (x) knowledge of such breach by the Issuer or (y) written notice thereof to the Issuer from Lockheed Martin, so long as Lockheed Martin or any of its Affiliates holds any portion of the Convertible Notes, the Issuer shall, unless otherwise directed by Lockheed Martin, immediately prepay all of the Convertible Notes together with all accrued and unpaid interest thereon plus all other Obligations (it being understood and agreed that the payment pursuant to this clause (c) shall be in addition to, but without duplication of, any other right and remedy that any Secured Party has under the Note Documents (which, for the avoidance of doubt, shall not include the rights and remedies under the Strategic Cooperation Agreement, the exercise of which are governed by the Strategic Cooperation Agreement) as a result of an Event of Default arising from the occurrence of any such event). In connection with any prepayment pursuant to this Section 2.07(c), the Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent such laws and regulations are applicable in connection with such prepayment.

2.08 Repayment of Notes.

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(a) The Issuer shall repay the outstanding principal amount of the Convertible Notes, together with all accrued and unpaid interest and all other Obligations, on the Maturity Date. Convertible Notes repaid or prepaid may not be reborrowed.

(b) (i) If a Fundamental Change occurs, each Purchaser shall have the right (the “Fundamental Change Repurchase Right”) at such Purchaser’s option, to require the Issuer to repurchase all or a part (in integral multiples of $1,000 in principal amount) of such Purchaser’s Convertible Notes on a date selected by the Purchaser (the “Fundamental Change Repurchase Date”), which shall be no later than sixty (60) days, and no earlier than twenty (20) days, after the date the Fundamental Change Notice is mailed in accordance with Section 8.03(h), at a price, payable in cash, equal to 100% of the principal amount of the Convertible Notes (or portions thereof) to be so repurchased, plus accrued and unpaid interest, if any, to, but excluding, the Fundamental Change Repurchase Date (the “Fundamental Change Repurchase Price”). On the Fundamental Change Repurchase Date, the Issuer shall repurchase the Convertible Notes specified in the Repurchase Notice (as defined below) and shall pay the Fundamental Change Repurchase Price.

(ii) To exercise its Fundamental Change Repurchase Right, each Purchaser shall deliver to the Issuer written notice in accordance with Section 12.02 stating its intention to exercise its Fundamental Change Repurchase Right and the Fundamental Change Repurchase Date and the principal amount of Convertible Notes to be repurchased (the “Repurchase Notice”).

(iii) Notwithstanding anything herein to the contrary, any Purchaser that has delivered a Repurchase Notice as contemplated by this Section 2.08(b) to the Issuer shall have the right to withdraw such Repurchase Notice by delivery, at any time prior to 5:00 p.m. on the Business Day immediately preceding the Fundamental Change Repurchase Date (or, if there shall be a Default in the payment of the Fundamental Change Repurchase Price, at any time during which such Default is continuing), of a written notice of withdrawal to the Issuer, which notice shall be delivered in accordance with Section 12.02.

2.09 Interest; Other Amounts.

(a) Pre-Default Rate. Subject to the provisions of subsection (b) below, the Convertible Notes shall bear interest on the outstanding principal amount thereof at a rate per annum of ten percent (10.00%).

(b) Default Rate. (i) (x) Upon the occurrence of and during the continuance of any Event of Default, all outstanding Obligations shall bear interest during the continuance of such Event of Default at an interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws and (ii) accrued and unpaid interest (including interest on past due interest) shall be due and payable in cash on demand.

(c) Interest Generally. Interest on the Convertible Notes shall be due and payable on May 15th, August 15th, November 15th and February 15th of each calendar year (or, if such date is not a Business Day, on the immediately succeeding Business Day) commencing on February 15th, 2023 (each such date an “Interest Payment Date”), on the Maturity Date and at such other times as may be specified herein; provided, that in lieu of making a payment in cash of all or any portion of the interest amount due on any Interest Payment Date, the Issuer may elect to pay such interest amount in kind (the “PIK Election”), in which case such unpaid interest amount shall be added to the principal balance of the Convertible Notes on such Interest Payment Date and, by such addition thereto, such interest amount shall be deemed to have

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been paid in full. The PIK Election shall be deemed to have been made automatically and without further action by the Issuer on any Interest Payment Date to the extent the Issuer does not pay the interest amount due on such date in cash. Notwithstanding the foregoing, the PIK Election shall not be available (i) on any Interest Payment Date that is the Maturity Date or (ii) at any time that an Event of Default shall have occurred and be continuing. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law. Notwithstanding anything herein to the contrary, any interest payment in cash shall be subject to (i) the Consolidated Interest Coverage Ratio (as defined in the FP Note Purchase Agreement) set forth in Section 8.11(g)(i) of the FP Note Purchase Agreement and (ii) the Consolidated Interest Coverage Ratio (as defined in the LM/BP Note Purchase Agreement) set forth in Section 8.11(g)(i) of the LM/BP Note Purchase Agreement.

2.10 Computation of Interest.

All computations of interest shall be made on the basis of a 365/366-day year and actual days elapsed. Interest shall accrue on the Convertible Notes for the day on which the Convertible Notes are issued, and shall not accrue on the Convertible Notes, or any portion thereof, for the day on which the Convertible Notes or such portion is paid or converted.

2.11 Conversion.

(a) Right of Purchasers to Convert. Subject to the provisions of Section 2.11(b), at any time and from time to time prior to the Maturity Date, each Purchaser shall have the right, at such Purchaser’s option, to convert all or any portion of the principal of, and any accrued but unpaid interest on, its Convertible Notes into the number of fully-paid and non-assessable Shares of the Issuer’s Common Stock on the date of conversion obtained by dividing (i) the outstanding principal amount of, and any accrued but unpaid interest on, such Purchaser’s Convertible Notes, by (ii) a conversion price (the “Conversion Price”) equal to $2.898. The Issuer shall at all times reserve and keep available out of its authorized and unissued Common Stock, solely for issuance upon the conversion of the Convertible Notes, such number of shares of Common Stock as shall from time to time be issuable upon the conversion of all the Convertible Notes then outstanding. Any shares of Common Stock issued upon conversion of Convertible Notes (i) shall be duly authorized, validly issued and fully paid and non-assessable, (ii) shall rank pari passu with the other shares of Common Stock outstanding from time to time and (iii) shall be approved for listing on the NYSE (or any other national securities exchange on which the Common Stock is listed).

(b) Conversion Procedures. A Purchaser must do each of the following in order to convert its Convertible Notes pursuant to this Section 2.11:

(i) complete and manually sign the conversion notice (the “Conversion Notice”) to be provided by the Conversion Agent and substantially in the form of Schedule I to Exhibit A, and deliver such notice to the Conversion Agent, which, for the avoidance of doubt, once delivered, shall be irrevocable, except (A) during any waiting period with respect to Antitrust Filings that have been made or obtained in connection with such conversion or (B) as otherwise provided by this Agreement;

(ii) surrender the Convertible Notes to the Conversion Agent;

(iii) if required, furnish appropriate endorsements and transfer documents; and

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(iv) if required, pay any stock transfer, documentary, stamp or similar taxes not payable by the Issuer pursuant to Section 2.11(e).

(c) Effect of Conversion. Each conversion shall be deemed to have been effected as to any Convertible Notes surrendered for conversion (the “Surrender Date”) at the close of business on the applicable Conversion Date (provided, however, that if the Issuer or the Purchaser has notified the other party that Antitrust Filings are required to be made in connection with any such conversion, the Conversion Date shall be deemed to be the business day after all such Antitrust Filings have been made or obtained and any waiting periods with respect thereto have expired, notwithstanding the Surrender Date; provided, further, however, that, without the consent of the Issuer, the Conversion Date may not be extended more than 90 days from the Surrender Date and if any Antitrust Filings have not been made or obtained within such 90 day (or shorter) period (as may be extended with the consent of the Issuer), the Conversion Notice shall be deemed to have been automatically rescinded) and the person in whose name the Shares of Common Stock shall be issuable upon such conversion (the “Conversion Shares”) shall become the holder of record of such shares as of the close of business on such Conversion Date. Prior to such time, a Purchaser receiving the Conversion Shares upon conversion shall not be entitled to any rights relating to such Shares, including, among other things, the right to vote and receive dividends and notices of shareholder meetings. On and after the close of business on the Conversion Date, in each case, with respect to a conversion of a Convertible Note pursuant hereto, all rights of the Purchaser of such Convertible Note shall terminate, other than the right to receive the consideration deliverable or payable upon conversion of such Convertible Note as provided herein. Except as provided in the Convertible Note or in this Section 2.11, no payment or adjustment will be made for accrued interest on a converted Convertible Note, and accrued interest, if any, will be deemed to be paid by the consideration paid to the Purchaser upon conversion. Such accrued interest, if any, shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. The Issuer shall, as promptly as practical following the Conversion Date, (i) cause the Issuer’s transfer agent to credit the number of Conversion Shares to which the Holder is entitled pursuant to such exercise to a balance account with The Depository Trust Company, if such Conversion Shares are not subject to any securities legends and restrictions at such time, and otherwise to a balance account with the Issuer’s transfer agent, subject to any securities legends and restrictions then applicable, in the name of the Issuer or, at the Purchaser’s instruction set forth in the Conversion Notice, the Purchaser’s agent or designee (provided such Person must be an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act) or (ii) issue and deliver to the Purchaser or, at the Purchaser’s instruction set forth in the Conversion Notice, the Purchaser’s agent or designee (provided such Person must be an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act) a certificate or certificates (at the Purchaser’s instruction set forth in the Conversion Notice), sent by reputable overnight courier to the address as specified in the Conversion Notice and registered in the Issuer’s share register in the name of the Purchaser or its agent or designee (as indicated in the Conversion Notice), representing the number of Conversion Shares to which the Holder is entitled pursuant to such exercise.

(d) Cash in Lieu of Fractional Shares. No fractional Shares of Common Stock will be delivered to the Purchasers upon conversion. In lieu of fractional shares otherwise issuable, the Purchasers will be entitled to receive, at the Issuer’s sole discretion, either (i) an amount in cash equal to the fraction of a Share of Common Stock multiplied by the Closing Price of the Common Stock on the Trading Day immediately preceding the applicable Conversion Date or (ii) one additional whole Share of Common Stock.

(e) Taxes on Conversion. If a Purchaser converts its Convertible Notes, the Issuer shall pay any documentary, stamp or similar issue or transfer tax or duty due on the issue, if any, of Shares upon the conversion. However, such Purchaser shall pay any such tax or duty that is due because such Shares are

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issued in a name other than such Purchaser’s name. The Conversion Agent may refuse to deliver a certificate representing the Shares to be issued in a name other than such Purchaser’s name until the Conversion Agent receives a sum sufficient to pay any tax or duty which will be due because such shares are to be issued in a name other than such Purchaser’s name.

(f) Anti-Dilution Adjustments. The Conversion Price shall be subject to adjustment from time to time, without duplication, upon the occurrence of any of the following events. For purposes of this Section 2.11(f), “effective date” means the first date on which the Shares trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split or share combination, as applicable.

(i) The issuance of Common Stock as a dividend or distribution to all or substantially all holders of Common Stock, or a subdivision or combination of Common Stock or a reclassification of Common Stock into a greater or lesser number of shares of Common Stock, in which event the Conversion Price shall be adjusted based on the following formula:

CP1 = CP0 x (OS0 / OS1)

CP0 = the Conversion Price in effect immediately prior to the close of business on (i) the record date for such dividend or distribution or (ii) the effective date of such subdivision, combination or reclassification.

CP1 = the new Conversion Price in effect immediately after the close of business on (i) the record date for such dividend or distribution or (ii) the effective date of such subdivision, combination or reclassification.

OS0 = the number of Shares of Common Stock outstanding immediately prior to the close of business on (i) the record date for such dividend or distribution or (ii) the effective date of such subdivision, combination or reclassification.

OS1 = the number of Shares of Common Stock that would be outstanding immediately after, and solely as a result of, the completion of such event.

Any adjustment made pursuant to this clause (i) shall be effective immediately prior to the open of business on the Trading Day immediately following the record date, in the case of a dividend or distribution, or the effective date, in the case of a subdivision, combination or reclassification. If any such event is announced or declared but does not occur, the Conversion Price shall be readjusted, effective as of the date on which the Board of Directors announces that such event shall not occur, to the Conversion Price that would then be in effect if such event had not been declared.

(ii) [Reserved]

(iii) The Issuer, by dividend or otherwise, distributes to all or substantially all holders of its Common Stock (other than cash in lieu of fractional shares), cash, shares of any class of capital stock, evidences of its indebtedness, assets, other property or securities, but excluding (A) dividends or distributions referred to in Section 2.11(f)(i), (B) rights, options or warrants distributed in connection with a stockholder rights plan referred to in Section 2.11(l), (C) Distribution Transactions as to which Section 2.11(f)(iv) shall apply or (D) options or warrants referred to in Section 2.11(f)(v) (any of such

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shares of capital stock, indebtedness, assets or property that are not so excluded are hereinafter called the (“Distributed Property”), in which event the Conversion Price shall be adjusted based on the following formula:

CP1 = CP0 x [(SP0 - FMV) / SP0]

CP0 = the Conversion Price in effect immediately prior to the close of business on the record date for such dividend or distribution.

CP1 = the new Conversion Price in effect immediately after the close of business on the record date for such dividend or distribution.

SP0 = the Current Market Price as of the record date for such dividend or distribution.

FMV = the fair market value of the portion of Distributed Property (or, with respect to dividends or distributions paid exclusively in cash, the amount in cash) distributed with respect to each outstanding Share of Common Stock on the record date for such dividend or distribution.

If any such event is declared but does not occur, the Conversion Price shall be readjusted, effective as of the date on which the Board of Directors announces that such event shall not occur, to the Conversion Price that would then be in effect if such event had not been declared.

(iv) The Issuer effects any transaction by which a Subsidiary of the Issuer ceases to be a Subsidiary of the Issuer by reason of the distribution of such Subsidiary’s equity securities to holders of Common Stock, whether by means of a spin-off, split-off, redemption, reclassification, exchange, stock dividend, share distribution, rights offering or similar transaction (each, a “Distribution Transaction”), in which event the Conversion Price in effect immediately prior to the close of business on the tenth (10th) full Trading Day immediately following, and including, the effective date of the Distribution Transaction shall be adjusted based on the following formula:

CP1 = CP0 x [MP0 / (FMV + MP0)]

CP = the Conversion Price in effect immediately prior to the close of business on the tenth (10th) full Trading Day immediately following, and including, the effective date of the Distribution Transaction.

CP1 = the new Conversion Price in effect immediately after the close of business on the tenth (10th) full Trading Day immediately following, and including, the effective date of the Distribution Transaction.

FMV = the arithmetic average of the volume-weighted average prices for a share of the capital stock or other interest distributed to holders of Common Stock on the principal United States securities exchange or automated quotation system on which such capital stock or other interest trades, as reported by Bloomberg, L.P. (or, if Bloomberg ceases to publish such price, any successor service reasonably chosen by the Issuer) in respect of the period from the open of trading on the

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relevant Trading Day until the close of trading on such Trading Day (or if such volume-weighted average price is unavailable, the market price of one share of such capital stock or other interest on such Trading Day determined, using a volume-weighted average method, by a nationally recognized investment banking firm (unaffiliated with the Issuer) retained by the Issuer for such purpose), for each of the ten (10) consecutive full Trading Days commencing with, and including, the effective date of the Distribution Transaction.

MP0 = the arithmetic average of the VWAP per Share of Common Stock for each of the ten (10) consecutive full Trading Days commencing with, and including, the effective date of the Distribution Transaction

Such adjustment shall occur on the tenth (10th) full Trading Day immediately following, and including, the effective date of the Distribution Transaction, and notwithstanding anything to the contrary herein, the Purchasers shall not be entitled to convert any Convertible Note prior to such tenth (10th) Trading Day.

(v) The Issuer, by dividend or otherwise, distributes to all or substantially all holders of Common Stock rights, options or warrants (other than rights, options or warrants distributed in connection with a stockholder rights plan (in which event the provisions of Section 2.11(l) shall apply)) entitling them to subscribe for or purchase Shares of Common Stock for a period expiring sixty (60) days or less from the date of issuance thereof, at a price per Share that is less than the Current Market Price as of the record date for such issuance, in which event the Conversion Price shall be decreased based on the following formula:

CP1 = CP0 x (OS0+Y) / [(OS0+X)]

CP0 = the Conversion Price in effect immediately prior to the close of business on the record date for such dividend, distribution or issuance.

CP1 = the new Conversion Price in effect immediately following the close of business on the record date for such dividend, distribution or issuance.

OS0 = the number of Shares of Common Stock outstanding immediately prior to the close of business on the record date for such dividend, distribution or issuance.

X = the total number of Shares of Common Stock issuable pursuant to such rights, options or warrants.

Y = the number of Shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants divided by the Current Market Price as of the record date for such dividend, distribution or issuance.

For purposes of this clause (v), in determining whether any rights, options or warrants entitle the Purchasers to subscribe for or purchase Shares at a price per Share that is less than the Current Market Price as of the record date for such dividend, distribution or issuance, there shall be taken into account any consideration the Issuer receives for such rights, options or warrants, and any amount payable on exercise thereof, with the value of such consideration, if other than cash, to be the fair market value thereof.

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Any adjustment made pursuant to this clause (v) shall become effective immediately following the close of business on the record date for such dividend, distribution or issuance. In the event that such rights, options or warrants are not so issued, the Conversion Price shall be readjusted, effective as of the date the Board of Directors publicly announces its decision not to issue such rights, options or warrants, to the Conversion Price that would then be in effect if such dividend, distribution or issuance had not been declared. To the extent that such rights, options or warrants are not exercised prior to their expiration or Shares of Common Stock are otherwise not delivered pursuant to such rights, options or warrants upon the exercise of such rights, options or warrants, the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustments made upon the dividend, distribution or issuance of such rights, options or warrants been made on the basis of the delivery of only the number of Shares of Common Stock actually delivered.

(g) Calculation of Adjustments. All adjustments to the Conversion Price shall be calculated by the Issuer to the nearest 1/10th of a cent and all conversions based thereon shall be calculated by the Issuer to the nearest 1/10,000th of one Share of Common Stock (or if there is not a nearest 1/10,000th of a Share, to the next lower 1/10,000th of a Share). No adjustment to the Conversion Price will be required unless such adjustment would require an increase or a decrease to the Conversion Price of at least $0.01; provided, however, that any such adjustment that is not required to be made will be carried forward and taken into account in any subsequent adjustment; provided further that any such adjustment of less than $0.01 that has not been made will be made upon any Conversion Date.

(h) No Adjustment. The Conversion Price shall not be adjusted for the issuance of Shares of Common Stock or any securities convertible into or exchangeable for Common Stock or carrying the right to purchase any of the foregoing, or for the repurchase of Common Stock or any other transaction or event except for any transaction or event described in Section 2.11(f). Without limiting the foregoing, the Conversion Price shall not be adjusted:

(i) upon the issuance of any Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Issuer’s securities and the investment of additional optional amounts in Shares of Common Stock under any plan in which purchases are made at market prices on the date or dates of purchase, without discount, and whether or not the Issuer bears the ordinary costs of administration and operation of the plan, including brokerage commissions;

(ii) upon the issuance of any Shares, restricted stock or restricted stock units, non-qualified stock options, incentive stock options or any other options or rights (including stock appreciation rights) to purchase Shares pursuant to any present or future employee, director or consultant benefit plan or program of, or assumed by, the Issuer or any of its Subsidiaries or of any employee agreements or arrangements or programs, including the Equity Incentive Plan;

(iii) upon the issuance of any Shares pursuant to any option, warrant, right or exercisable, exchangeable or convertible security;

(iv) for the sale or issuance of new Shares or securities convertible into or exercisable for Shares for cash, including at a price per share less than the fair market value thereof or the Conversion Price or otherwise, except as described in Section 2.11(f)(v) above;

(v) upon the issuance of any Shares of Common Stock in connection with the B. Riley Purchase Agreement;

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(vi) upon the issuance of any Shares of Common Stock in connection with the exercise of any of the Warrants or the Existing Warrants; or

(vii) upon the issuance of any Shares of Common Stock in connection with the settlement of the Staton Payment Obligation in accordance with the Staton Subscription Agreement.

No adjustment to the Conversion Price need be made pursuant to Section 2.11(f) for a transaction (other than for share splits or share combinations pursuant to Section 2.11(f)(i) above) if the Issuer makes provision so that, upon any conversion of the Convertible Notes, the Purchaser shall be entitled to receive, in addition to the Conversion Shares issuable upon conversion, such consideration in respect of the transaction to the extent such consideration would have been paid or made, as applicable, in respect of the Conversion Shares issued upon such conversion had Conversion Shares been outstanding immediately prior to the record date, or effective date, as applicable for such transaction (without giving effect to any adjustment pursuant to Section 2.11(f)(i) above on account of such transaction). For the avoidance of doubt, if an event occurs that would trigger an adjustment to the Conversion Price pursuant to this Section 2.11 under more than one subsection hereof, such event, to the extent fully taken into account in a single adjustment, shall not result in multiple adjustments hereunder.

(i) Adjustments for Tax Purposes. Except as prohibited by law, the Issuer may (but is not obligated to) reduce the Conversion Price, in addition to those required above, as it determines to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock made by the Issuer or to its shareholders will not be taxable to the recipients thereof or in order to avoid or diminish any such taxation.

(j) Notice of Adjustment. Whenever the Conversion Price is adjusted, the Issuer shall promptly mail to the Purchasers at their respective addresses set forth herein a notice of the adjustment briefly stating the facts requiring the adjustment and the manner of computing it.

(k) Reorganization, Reclassification, Consolidation or Merger. In the event of any (i) capital reorganization of the Issuer, (ii) reclassification of the stock of the Issuer (other than changes resulting from a subdivision or combination), (iii) consolidation or merger of the Issuer with or into another person, (iv) sale of all or substantially all of the Issuer’s assets to another person or (v) other similar transaction(except for any transaction as otherwise provided for in Section 2.11(f)), in each case, pursuant to which the Shares (either directly or upon subsequent liquidation) would be converted into or exchanged for, or would constitute solely the right to receive, cash, securities or other property (any such event, a “Merger Event”), each $1,000 principal amount of Convertible Notes will, from and after the effective time of such Merger Event, be convertible into the same kind, type and proportions of consideration that a holder of a number of Shares equal to $1,000 divided by the Conversion Price in effect immediately prior to such Merger Event would have received in such Merger Event had the Purchaser converted such portion of its Convertible Notes into Shares in accordance with this Agreement immediately prior to the effective date of such Merger Event (“Reference Property”); provided that the foregoing shall not apply if the Purchaser is a Person with which the Issuer consolidated or into which the Issuer amalgamated or merged or which amalgamated with or merged into the Issuer or to which such sale or transfer was made, as the case may be (any such Person, a “Constituent Person”), or an Affiliate of a Constituent Person, to the extent such Merger Event provides for different treatment of Shares of Common Stock held by such Constituent Persons or such Affiliate thereof.

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Prior to or at the effective time of such Merger Event, the Issuer or the successor or purchasing person, as the case may be, shall enter into an amendment to this Agreement in accordance with Section 12.01 providing for such change in the right to convert the Convertible Notes (to the extent so required); provided, however, that at and after the effective time of the Merger Event, any Shares that the Issuer would have been required to deliver upon conversion of the Convertible Notes in accordance with Section 2.11(f) shall instead be deliverable in the amount and type of Reference Property that a holder of that number of Shares would have received in such Merger Event.

If the Merger Event causes the Shares to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Convertible Notes will be convertible shall be deemed to be the weighted average of the types and amounts of consideration received by the holders of Shares that affirmatively make such an election and (ii) the unit of Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one Share. The Issuer shall notify the Purchasers and the Conversion Agent of such weighted average as soon as practicable after such determination is made. If the holders receive only cash in such Merger Event, then for all conversions that occur after the effective date of such Merger Event (A) the consideration due upon conversion of each $1,000 principal amount of Convertible Notes shall be solely cash in an amount equal to $1,000 divided by the Conversion Price in effect on the effective date of such Merger Event, multiplied by the price paid per Share in such Merger Event and (B) the Issuer shall satisfy its conversion obligations by paying cash to converting Purchasers as promptly as practicable immediately following the relevant Conversion Date. The Issuer shall notify the Purchasers and the Conversion Agent of such weighted average as soon as practicable after such determination is made. None of the foregoing provisions shall affect the right of a Purchaser to convert its Convertible Notes into Shares (and cash in lieu of any fractional share) prior to the effective date of such Merger Event.

(l) Rights Distributions Pursuant to Shareholders’ Rights Plans.

(i) To the extent that the Issuer adopts a rights plan (i.e., a poison pill) and such plan is in effect upon conversion of any Convertible Note or a portion thereof, the Issuer shall make provision such that each Purchaser shall receive, in addition to, and concurrently with the delivery of, the Shares due upon conversion, the rights described in such plan, unless, prior to the Conversion Date, the rights have (i) become exercisable or (ii) separated from the Shares (the first of such events to occur, a “Trigger Event”), in which case the Conversion Price shall be adjusted automatically effective at the time of such Trigger Event as if the Issuer distributed to all holders of Shares Distributed Property as described in Section 2.11(f)(iii) above, subject to readjustment in the event of the expiration, termination or redemption of such rights. Notwithstanding the foregoing, to the extent any such stockholder rights are exchanged by the Issuer for Shares of Common Stock or other property or securities, the Conversion Price shall be appropriately readjusted as if such stockholder rights had not been issued, but the Issuer had instead issued such Shares of Common Stock or other property or securities as a dividend or distribution of Shares of Common Stock pursuant to Section 2.11(f)(i) or Section 2.1(f)(iii), as applicable.

(ii) To the extent that such rights are not exercised prior to their expiration, termination or redemption, the Conversion Price shall be readjusted to the Conversion Price that would then be in effect had the adjustments made upon the occurrence of the Trigger Event been made on the basis of the issuance of, and the receipt of the exercise price with respect to, only the number of Shares of Common Stock actually issued pursuant to such rights. Notwithstanding the foregoing, to the extent any such rights are exchanged by the Issuer for Shares of Common Stock, the Conversion Price shall be appropriately readjusted as if such rights had not been issued, but the Issuer had instead issued the Shares of Common

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Stock issued upon such exchange as a dividend or distribution of Shares of Common Stock subject to Section 2.11(f)(i).

(iii) Notwithstanding anything to the contrary in the preceding two paragraphs of this Section 2.11(l), no adjustment shall be required to be made to the Conversion Price with respect to any Purchaser which is, or is an “affiliate” or “associate” of, an “acquiring person” under such stockholder rights plan or with respect to any direct or indirect transferee of such Purchaser who receives any portion of the Convertible Note in such transfer (or Conversion Shares in respect thereof) or after the time such Purchaser becomes, or its affiliate or associate becomes, such an “acquiring person”.

(m) Conversion Floor. In the event that any adjustment to the Conversion Price pursuant to this Section 2.11 would require the Issuer to seek shareholder approval pursuant to NYSE rules, the Issuer shall use its reasonable best efforts to hold a special meeting of its shareholders within ninety (90) days following the effective date of the corporate action that would have triggered the adjustment to obtain approval for such adjustment to the Conversion Price and the proxy statement related to such special meeting will include a recommendation by the Issuer’s Board of the Directors that the shareholders of the Issuer vote in favor of such proposal. If the shareholders of the Issuer do not approve such adjustment, the Issuer will use its reasonable best efforts to obtain shareholder approval at the next annual meeting of shareholders and each subsequent annual meeting thereafter. Prior to obtaining the shareholder approval required by the prior sentence, the Conversion Price shall be deemed to be equal to $2.52.

(n) Restriction on Conversion. Unless permitted by the applicable rules and regulations of the NYSE, the Issuer shall not issue any Shares of Common Stock upon conversion of the Convertible Notes which would cause the Common Stock held by Lockheed Martin or its Affiliates to exceed 30% of the Common Stock then outstanding. Notwithstanding the foregoing, such limitation shall not apply in the event that the Issuer (i) obtains the approval of its shareholder as required by the applicable rules of the NYSE for issuances of Shares of Common Stock in excess of such amount or (ii) the Issuer obtains the consent from the NYSE that such conversion in excess of such amount does not require shareholder approval under the applicable rules of the NYSE.

2.12 Payments Generally.

(a) General. All payments to be made by the Issuer shall be made free and clear of and without condition or deduction for any counterclaim, defense, recoupment or setoff. Subject to Section 10.03, all payments of principal, interest, prepayment and repayment premiums and fees on the Convertible Notes and all other Obligations payable by any Note Party under the Note Documents shall be due, without any presentment thereof, directly to the Purchasers, at such office or bank account as may be specified by each Purchaser from time to time by written notice to the Issuer. The Note Parties will make such payments in Dollars, in immediately available funds not later than 2:00 p.m. on the date due, marked for attention as indicated, or in such other manner or to such other account in any United States bank as the Purchasers may from time to time direct in writing. All payments received by the Purchasers after 2:00 p.m. shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue in respect of such succeeding Business Day. If any payment to be made by the Issuer shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest.

(b) Obligations of Purchasers are Several. The obligations of the Purchasers hereunder to purchase the Convertible Notes and to make payments pursuant to Section 12.04(d) are several and not joint. The failure of any Purchaser to purchase the aggregate principal amount of the Convertible Notes to

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be purchased by it or to make any payment under Section 12.04(d) on any date required hereunder shall not relieve any other Purchaser of its corresponding obligation to do so on such date, and no Purchaser shall be responsible for the failure of any other Purchaser to purchase the aggregate principal amount of the Convertible Notes to be purchased by it or to make its payment under Section 12.04(d).

(c) Funding Source. Nothing herein shall be deemed to obligate any Purchaser to obtain the funds to purchase any Convertible Note in any particular place or manner or to constitute a representation by any Purchaser that it has obtained or will obtain the funds to purchase any Convertible Note in any particular place or manner.

2.13 No Purchase of Notes. No Note Party or any of their respective Affiliates may acquire directly or indirectly any of the outstanding Convertible Notes, without the prior written consent of the Required Purchasers (other than upon the conversion thereof pursuant to Section 2.11).

2.14 Sharing of Payments by Purchasers.

If any Purchaser shall, by exercising any right of setoff or otherwise (other than pursuant to such Purchaser’s conversion thereof in accordance with Section 2.11 or the prepayment or repayment thereof pursuant to Section 2.07 or Section 2.08), obtain payment in respect of any principal of or interest on its portion of any Convertible Note resulting in such Purchaser’s receiving payment of a proportion of the aggregate amount of the Convertible Note and accrued interest thereon greater than its pro rata share thereof as provided herein, then such Purchaser shall (a) notify the other Purchasers of such fact and (b) purchase for cash at face value, but without recourse, ratably from each of the other Purchasers such amount of the Convertible Notes held by each such other Purchaser (or interest therein), so that the benefit of all such payments shall be shared by the Purchasers ratably in accordance with the aggregate amount of principal of and accrued interest on their respective portions of the Convertible Notes and other amounts owing them; provided, that:

(i) if any such purchase is made by any Purchaser, and if such excess payment or part thereof is thereafter recovered from such purchasing Purchaser, the related purchases from the other Purchasers shall be rescinded ratably and the purchase price restored as to the portion of such excess payment so recovered, but without interest; and

(ii) the provisions of this Section 2.14 shall not be construed to apply to (A) any payment made by or on behalf of the Issuer pursuant to and in accordance with the express terms of this Agreement, or (B) any payment obtained by a Purchaser as consideration for the assignment of any of its portion of the Convertible Notes to any assignee, other than an assignment to the Issuer or any Subsidiary (as to which the provisions of this Section shall apply).

2.15 AHYDO. Notwithstanding anything to the contrary contained in this Agreement, if (1) the Convertible Notes remain outstanding after the fifth anniversary of the Closing Date and (2) the aggregate amount of the accrued but unpaid interest on the Convertible Notes (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any Testing Date (as defined below) occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual (as defined below), then all such accrued but unpaid interest on the Convertible Notes (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of such time in excess of an amount equal to the Maximum Accrual shall be paid in cash by the Issuer to the Purchasers on such Testing Date, it being the intent of the parties hereto that the Convertible Notes will not be treated as an “applicable high yield debt obligation” under Sections 163(e)(5) and Section 163(i) of the

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Internal Revenue Code and shall be interpreted consistently with such intent. For these purposes, the “Maximum Accrual” is an amount equal to the product of the Convertible Notes’ issue price (as defined in Internal Revenue Code Sections 1273(b) and 1274(a)) and their yield to maturity, and a “Testing Date” is any regularly scheduled date on which interest is required to be paid hereunder and the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the Internal Revenue Code) closes. Any accrued interest which for any reason has not theretofore been paid shall be paid in full on the date on which the final principal payment on the Convertible Notes is made.

Article III
WARRANTS

3.01 Authorization and Issuance of Warrants. In consideration of, and in express reliance upon, the representations, warranties and covenants set forth herein, at the Closing Date, subject to the terms and conditions set forth in this Agreement, the Issuer shall issue and sell to each Purchaser, and each Purchaser shall acquire and receive from the Issuer, a warrant to purchase, at each Purchaser’s election, that number of Shares (as may be adjusted from time to time) specified on Schedule I under the heading “Warrants” substantially in the form attached hereto as Exhibit B (each, a “Warrant” and collectively, the “Warrants”). Schedule I sets forth (1) the number of Shares purchasable pursuant to the Warrant, in each case, as if the applicable Purchaser exercised such Warrant in full on the date hereof, and (2) the exercise price payable by the holder of the Warrant upon exercise of the Warrant, in each case, if the applicable Purchaser exercised such Warrant in full on the date hereof.

3.02 Closing Date. The purchase and sale of the Warrants pursuant to Section 3.01 shall take place remotely via the electronic exchange of documents and signatures on the Closing Date (or such other time and place as the parties shall agree) simultaneously with the closing of the Convertible Notes. The sale and purchase of the Warrants on the Closing Date shall be made in reliance upon the terms and conditions set forth in this Agreement. The Issuer and each Purchaser shall take such additional actions and execute and deliver such additional agreements and other instruments and documents as are necessary or appropriate to effect the transactions contemplated by this Agreement in accordance with its terms.

3.03 Delivery of Documents. At or prior to the Closing Date:

(a) the Issuer shall deliver the applicable Warrant, duly executed and delivered by the Issuer, to each Purchaser; and

(b) the Purchaser shall deliver to the Issuer the applicable Warrant, duly executed and delivered by the Purchaser.

Article IV
TAXES

4.01 Taxes.

(a) The Issuer and Lockheed Martin, as a Purchaser, hereby acknowledge and agree that, for United States income tax purposes, the Convertible Notes and the Warrants purchased by Lockheed Martin constitute an “investment unit” for purposes of Section 1273(c)(2) of the Code. Lockheed Martin and the Issuer mutually agree that the allocation of the issue price of such investment unit between the

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Convertible Notes and the Warrants in accordance with Section 1273(c)(2) of the Code and Treasury Regulation Section 1.1273-2(h) shall be in the case of the Convertible Notes, $78,000,000. Lockheed Martin and the Issuer agree to report all income tax matters with respect to such Convertible Notes and Warrants consistent with the provisions of this Section 4.01(a) unless otherwise required due to a change in applicable Law.

(b) The Issuer and Lockheed Martin hereby acknowledge and agree that, for United States income tax purposes, the Convertible Notes issued to Lockheed Martin will be issued with original issue discount equal to the difference between (i) the issue price of the Convertible Notes issued to Lockheed Martin and (ii) the sum of the stated principal amount of the Convertible Notes issued to Lockheed Martin and the aggregate interest to be paid on the Convertible Notes issued to Lockheed Martin.

(c) All payments of principal and interest on the Convertible Notes and all other amounts payable hereunder to any Recipient shall be made free and clear of and without deduction or withholding for or on account of any present or future income, excise, stamp, documentary, property or franchise taxes and other taxes, fees, duties, levies, assessments, withholding taxes or other charges of any nature whatsoever (including interest and penalties thereon) imposed by any taxing authority, excluding (x) taxes imposed on or measured by net income, branch profits taxes and franchise taxes, in each case imposed by the jurisdiction under which a Recipient is organized or conducts business (other than solely as the result of entering into any of the Note Documents or taking any action thereunder), (y) U.S. back-up and withholding and withholding taxes imposed on amounts payable to or for the account of a Recipient with respect to an applicable interest in any Convertible Note pursuant to a Law in effect on the date on which such Recipient acquires such interest in the Convertible Note, except in each case to the extent that, pursuant to this Section 4.01, amounts with respect to such taxes were payable by such Recipient’s assignor immediately before such Recipient became a party hereto and (z) U.S. federal withholding tax imposed under FATCA (all non-excluded items being called “Taxes”). If any withholding or deduction of any Taxes from any payment by or on account of any obligation of any Note Party hereunder is required in respect of any Taxes pursuant to any applicable Law, then (i) the applicable Withholding Agent shall be entitled to make such withholding or deduction and shall pay directly to the relevant Governmental Authority the full amount required to be so withheld or deducted within the time allowed and in the minimum amount required by applicable law, (ii) the applicable Withholding Agent shall promptly forward to the Purchasers an official receipt or other documentation satisfactory to the Required Purchasers evidencing such payment to such Governmental Authority and (iii) the sum payable by the applicable Note Party shall be increased by such additional amount or amounts as is necessary to ensure that the net amount actually received by the applicable Recipient will equal the full amount such Recipient would have received had no such withholding or deduction been required.

(d) The Issuer shall indemnify each Recipient, within ten (10) days after demand therefor, for the full amount of any Taxes with respect to any Note Document or any payment thereunder (including Taxes imposed on or attributable to amounts payable under this Section 4.01) payable or paid by such Recipient or required to be withheld or deducted from a payment by such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.

(e) Each Purchaser that purports to become an assignee of an interest pursuant to Section 12.06 after the Closing Date shall execute and deliver to the Issuer on or prior to the date that such Purchaser becomes a party hereto (and from time to time thereafter upon the reasonable request of the Issuer), one or more (as the Issuer may reasonably request) duly completed and executed copies of any forms, certificates or documents reasonably requested by the Issuer certifying as to such Purchaser’s entitlement to any

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available exemption from or reduction of withholding or deduction of taxes. The Issuer shall not be required to pay additional amounts to any Purchaser pursuant to this Section 4.01 with respect to taxes attributable to the failure of such Purchaser to comply with this paragraph.

(f) Each Purchaser agrees that if any form or certification it previously delivered pursuant to this Section 4.01 expires or becomes obsolete or inaccurate in any respect, it shall promptly update such form or certification or promptly notify the Issuer of its inability to do so.

(g) Each of the parties to the Agreement shall, within ten (10) days of a reasonable request by another party to the Agreement, supply to that other party:

(i) such forms, documentation and other information relating to its status under FATCA as that other party reasonably requests for the purposes of that other Party’s compliance with FATCA, and

(ii) such forms, documentation and other information relating to its status as that other Party reasonably requests for the purposes of that other Party’s compliance with any other law, regulation, or exchange of information regime, such as the Common Reporting Standard.

(h) If a Purchaser determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 4.01 (including by the payment of additional amounts pursuant to this Section 4.01), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 4.01 with respect to the Taxes giving rise to such refund), net of all reasonable and documented out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this Section 4.01(h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 4.01(h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this Section 4.01(h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 4.01(h) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

4.02 Survival.

All of the Note Parties’ obligations under this Article IV shall survive any transfer of the Convertible Notes, the repayment, satisfaction or discharge of the Obligations hereunder and the resignation or replacement of the Collateral Agent.

4.03 Mitigation of Obligations.

If the Issuer is required to pay any Taxes or additional amounts to any Purchaser or any Governmental Authority for the account of any Purchaser pursuant to Section 4.01, then at the request of the Issuer, such Purchaser shall use commercially reasonable efforts to designate a different lending office

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for purchasing its Convertible Notes hereunder or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the judgment of such Purchaser such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 4.01 as the case may be, in the future, and (ii) in each case, would not subject such Purchaser to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Purchaser. The Issuer hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses (including all reasonable and documented out-of-pocket fees, charges and disbursements of counsel) incurred by any Purchaser in connection with any such designation or assignment.

Article V
GUARANTY

5.01 The Guaranty.

Each of the Guarantors hereby jointly and severally guarantees to each Secured Party as hereinafter provided, as primary obligor and not as surety, the prompt payment of the Obligations of the Issuer and any other Guarantors in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) strictly in accordance with the terms thereof. The Guarantors hereby further agree that if any of the Obligations are not paid in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise), the Guarantors will, jointly and severally, promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Obligations, the same will be promptly paid in full when due (whether at extended maturity, as a mandatory prepayment, by acceleration or otherwise) in accordance with the terms of such extension or renewal.

Notwithstanding any provision to the contrary contained herein or in any other of the Note Documents, the obligations of each Guarantor under this Agreement and the other Note Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under the Debtor Relief Laws or any comparable provisions of any applicable state or federal law.

5.02 Obligations Unconditional.

The obligations of the Guarantors under Section 5.01 are joint and several, absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Note Documents, or any other agreement or instrument referred to therein, or any substitution, release, impairment or exchange of any other guarantee of or security for any of the Obligations, and, to the fullest extent permitted by applicable law, irrespective of any law or regulation or other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being the intent of this Section 5.02 that the obligations of the Guarantors hereunder shall be absolute and unconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right of subrogation, indemnity, reimbursement or contribution against the Issuer or any other Guarantor for amounts paid under this Article V until such time as the Obligations (other than contingent indemnification obligations for which no claim has been asserted) have been paid in full. Without limiting the generality of the foregoing, it is agreed that, to the fullest extent permitted by law, the occurrence of any one or more of the following shall not alter or impair the liability of any Guarantor hereunder, which shall remain absolute and unconditional as described above:

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(a) at any time or from time to time, without notice to any Guarantor, the time for any performance of or compliance with any of the Obligations shall be extended, or such performance or compliance shall be waived;

(b) any of the acts mentioned in any of the provisions of any of the Note Documents, or any other agreement or instrument referred to in the Note Documents shall be done or omitted;

(c) the maturity of any of the Obligations shall be accelerated, or any of the Obligations shall be modified, supplemented or amended in any respect, or any right under any of the Note Documents, or any other agreement or instrument referred to in the Note Documents shall be waived or any other guarantee of any of the Obligations or any security therefor shall be released, impaired or exchanged in whole or in part or otherwise dealt with;

(d) any Lien granted to, or in favor of, the Collateral Agent or any Purchaser as security for any of the Obligations shall fail to attach or be perfected; or

(e) any of the Obligations shall be determined to be void or voidable (including, without limitation, for the benefit of any creditor of any Guarantor) or shall be subordinated to the claims of any Person (including, without limitation, any creditor of any Guarantor).

With respect to its obligations hereunder, each Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Collateral Agent or any Purchaser exhaust any right, power or remedy or proceed against any Person under any of the Note Documents, or any other agreement or instrument referred to in the Note Documents, or against any other Person under any other guarantee of, or security for, any of the Obligations.

5.03 Reinstatement.

The obligations of the Guarantors under this Article V shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the Obligations is rescinded or must be otherwise restored by any holder of any of the Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify each Secured Party on demand for all reasonable and documented out-of-pocket costs and expenses incurred by such Secured Party in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.

5.04 Certain Additional Waivers.

Each Guarantor agrees that such Guarantor shall have no right of recourse to security for the Obligations, except through the exercise of rights of subrogation pursuant to Section 5.02 and through the exercise of rights of contribution pursuant to Section 5.06.

5.05 Remedies.

The Guarantors agree that, to the fullest extent permitted by law, as between the Guarantors, on the one hand, and the Collateral Agent and the Secured Parties, on the other hand, the Obligations may be declared to be forthwith due and payable as provided in Section 10.02 (and shall be deemed to have become automatically due and payable in the circumstances provided in said Section 10.02) for purposes of Section

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5.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or preventing the Obligations from becoming automatically due and payable) as against any other Person and that, in the event of such declaration (or the Obligations being deemed to have become automatically due and payable), the Obligations (whether or not due and payable by any other Person) shall forthwith become due and payable by the Guarantors for purposes of Section 5.01. The Guarantors acknowledge and agree that their obligations hereunder are secured in accordance with the terms of the Collateral Documents and that the Purchasers may exercise their remedies thereunder in accordance with the terms thereof.

5.06 Rights of Contribution.

The Guarantors agree among themselves that, in connection with payments made hereunder, each Guarantor shall have contribution rights against the other Guarantors as permitted under applicable law. Such contribution rights shall be subordinate and subject in right of payment to the obligations of such Guarantors under the Note Documents and no Guarantor shall exercise such rights of contribution until all Obligations (other than contingent indemnification obligations for which no claim has been asserted) have been paid in full and the commitments have been terminated.

5.07 Guarantee of Payment; Continuing Guarantee.

The guarantee in this Article V is a guaranty of payment and not of collection, is a continuing guarantee, and shall apply to all Obligations whenever arising.

Article VI
CONDITIONS PRECEDENT

6.01 Conditions to Effectiveness of Agreement and Purchase of Convertible Notes.

This Agreement shall become effective upon, and the obligation of each Purchaser to purchase the Convertible Notes on the Closing Date is subject to, satisfaction of the following conditions precedent:

(a) Note Documents. Receipt by the Purchasers of executed counterparts of this Agreement and the other Note Documents, each properly executed by a Responsible Officer of the signing Note Party and each other party to such Note Documents, in each case in form and substance satisfactory to the Purchasers.

(b) Opinions of Counsel. Receipt by the Purchasers of favorable opinions of legal counsel to the Note Parties, addressed to the Purchasers, dated as of the Closing Date, and in form and substance satisfactory to the Purchasers and their counsel.

(c) Financial Statements; Due Diligence. The Purchasers shall have received the Audited Financial Statements, the Interim Financial Statements and such other reports, statements and due diligence items as any Purchaser shall request.

(d) Litigation. There shall not exist any action, suit, investigation or proceeding pending or threatened in any court or before an arbitrator or Governmental Authority that could reasonably be expected, either individually or in the aggregate, to have a Material Adverse Effect.

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(e) Organization Documents, Resolutions, Etc. Receipt by the Purchasers of the following, each of which shall be pdf scans (with originals of the certificate and incumbency to promptly follow), in form and substance satisfactory to the Purchasers and their legal counsel:

(i) copies of the Organization Documents of each Note Party certified to be true and complete as of a recent date by the appropriate Governmental Authority of the state or other jurisdiction of its incorporation or organization, where applicable, and certified by a secretary or assistant secretary of such Note Party to be true and correct as of the Closing Date;

(ii) such certificates of resolutions, shareholder resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Note Party as the Purchasers may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Note Documents to which such Note Party is a party; and

(iii) such documents and certifications as the Purchasers may require to evidence that each Note Party is duly organized or formed, and is validly existing, in good standing and qualified to engage in business in its state of organization or formation, including certificates of good standing or status in all applicable jurisdictions.

(f) Perfection and Priority of Liens. Receipt by the Purchasers of the following, subject to Section 8.18:

(i) searches of Uniform Commercial Code filings in the jurisdiction of formation of each Note Party or where a filing would need to be made in order to perfect the Collateral Agent’s security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens;

(ii) UCC financing statements for each appropriate jurisdiction as is necessary, in the Required Purchasers’ sole discretion, to perfect the Collateral Agent’s security interest in the Collateral;

(iii) searches of ownership of, and Liens on, the Intellectual Property owned by each Note Party in the appropriate governmental offices;

(iv) duly executed IP Security Agreements as are necessary, in the Required Purchasers’ reasonable discretion, to perfect the Collateral Agent’s security interest in the Intellectual Property of the Note Parties; and

(v) perfection actions, including, without limitation, searches, certifications, notices and any other items required pursuant to or reasonably requested in connection with the Collateral Documents to be executed on the Closing Date.

(g) Evidence of Insurance. Receipt by the Collateral Agent of copies of insurance policies or certificates of insurance of the Note Parties, together with endorsements, evidencing liability and casualty insurance meeting the requirements set forth in the Note Documents, including, but not limited to, naming the Collateral Agent as additional insured (in the case of liability insurance) or lender loss payee (in the case of property insurance) on behalf of the Secured Parties.

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(h) Closing Certificate. Receipt by the Purchasers of a certificate signed by a Responsible Officer of the Issuer certifying, as of the Closing Date, (i) that the conditions specified in Sections 6.01(d) and (i) and 6.02(a), (b) and (c) have been satisfied, (ii) that the Issuer and its Subsidiaries (after giving effect to the transactions contemplated hereby and the incurrence of Indebtedness related thereto) are Solvent on a consolidated basis, (iii) that the Issuer and its Subsidiaries have no Indebtedness for borrowed money, other than Indebtedness permitted by Section 9.03, (iv) that neither the Issuer nor any Subsidiary has outstanding any Disqualified Capital Stock and (v) as true and complete an attached description of all intercompany Indebtedness of the Issuer and its Subsidiaries (both before and after giving effect to the application of the proceeds of the Convertible Notes).

(i) Governmental and Third Party Approvals. The Issuer and its Subsidiaries shall have received all material governmental, shareholder and third-party consents and approvals necessary in connection with the transactions contemplated by this Agreement and the other Note Documents and the other transactions contemplated hereby (other than any consents or approvals required in connection with the conversion of the Convertible Notes or the exercise of the Warrants), and all applicable waiting periods shall have expired without any action being taken by any Person that could reasonably be expected to restrain, prevent or impose any material adverse conditions on the Issuer or any of its Subsidiaries or such other transactions or that could seek to threaten any of the foregoing, and no law or regulation shall be applicable which could reasonably be expected to have such effect.

(j) Letter of Direction. Receipt by the Purchasers of a satisfactory letter of direction containing funds flow information with respect to the proceeds of the Convertible Notes (net of any fees, costs or expenses detailed therein) to be distributed on the Closing Date.

(k) Costs; Expenses. Subject to Section 12.04, the Issuer shall have paid all reasonable and documented out-of-pocket expenses, fees and charges of Lockheed Martin and the Collateral Agent incurred in connection with the Note Documents, including all documented expenses, fees, charges and disbursements of counsel to Lockheed Martin and the Collateral Agent, in each case, incurred on or prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute their reasonable estimate of such fees, charges and disbursements incurred or to be incurred by them through the closing proceedings (provided, that, such estimate shall not thereafter preclude a final settling of accounts between the Issuer, the Collateral Agent and Lockheed Martin).

(l) Strategic Cooperation Agreement. The Strategic Cooperation Agreement shall have been executed and delivered and the transactions thereunder to be consummated on the Closing Date shall be fully consummated substantially concurrently with the execution and delivery of this Agreement.

(m) No Material Adverse Effect. There shall not have occurred any event or condition that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.

(n) Representations and Warranties. The representations and warranties of the Issuer and each other Note Party contained in Article VII or any other Note Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date.

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(o) No Default. No Default or Event of Default shall exist, or would result from such proposed issuance of the Convertible Notes or from the application of the proceeds thereof.

By issuing and delivering the Convertible Notes, the Issuer shall be deemed to represent and warrant that the conditions specified in Sections 6.01(m), (n) and (o) have been satisfied on and as of the Closing Date. Without limiting the generality of the provisions of the last paragraph of Section 11.03, for purposes of determining compliance with the conditions specified in Section 6.01, each Purchaser that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Purchaser unless the Collateral Agent shall have received notice from such Purchaser prior to the proposed Closing Date specifying its objection thereto.

Article VII
REPRESENTATIONS AND WARRANTIES

Each Note Party represents and warrants to the Secured Parties that:

7.01 Existence, Qualification and Power.

Each Note Party and each of its Subsidiaries (a) is duly organized, incorporated or formed, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite permits, governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Note Documents to which it is a party, and (c) is duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

7.02 Authorization; No Contravention.

(a) The execution, delivery and performance by each Note Party of each Note Document to which such Person is party have been duly authorized by all necessary corporate or other organizational action, and do not (a) contravene the terms of any of such Person’s Organization Documents, (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, judgment, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject, in each case, in any material respect or (c) violate any applicable Law (including, without limitation, Regulation U or Regulation X issued by the FRB) in any material respect.

(b) A sufficient number of Shares of Common Stock has been duly authorized and reserved for issuance in accordance with the Issuer’s Organization Documents to provide for the issuance of the Shares upon conversion of the Convertible Notes and the exercise of the Warrants as of the date hereof.

7.03 Governmental Authorization; Other Consents.

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No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Note Party of this Agreement or any other Note Document other than: (a) those that (i) have already been obtained and are in full force and effect or (ii) are required in connection with the conversion of the Convertible Notes or the exercise of the Warrants; (b) filings to perfect the Liens created by the Collateral Documents; and (c) the filing of any applicable reports under securities laws.

7.04 Binding Effect.

Each Note Document has been duly executed and delivered by each Note Party that is party thereto. Each Note Document constitutes a legal, valid and binding obligation of each Note Party that is party thereto, enforceable against each such Note Party in accordance with its terms, subject to applicable Debtor Relief Laws or other Laws affecting creditors’ rights generally and subject to general principles of equity.

7.05 No Material Adverse Effect.

Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

7.06 Litigation.

There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Note Parties, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against any Note Party or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Note Document, or any of the transactions contemplated hereby or (b) either individually or in the aggregate, could reasonably be expected to result in any material liability of a Note Party or any of its Subsidiaries.

7.07 No Default.

(a) Neither any Note Party nor any Subsidiary is (i) in default under or with respect to any Material Contract that, individually or in the aggregate, could reasonably be expected to result in (A) a loss of more than 10% of the consolidated revenue of the Note Parties and their Subsidiaries on a consolidated basis (as measured against the consolidated revenue of the Note Parties and their Subsidiaries reflected in the most recently delivered financial statements delivered pursuant to Sections 6.01(c) or 8.01 or (B) liability to any Note Party or any Subsidiary in excess of $5,000,000 or (ii) in default under or with respect to any other Contractual Obligation that, in the case of this clause (ii), could reasonably be expected to have a Material Adverse Effect.

(b) No Default or Event of Default has occurred and is continuing.

7.08 Ownership of Property; Liens.

Each Note Party and its Subsidiaries has good and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business. The property of each Note Party and its Subsidiaries is subject to no Liens, other than Permitted Liens.

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7.09 Environmental and Safety Laws. Each Note Party and its Subsidiaries is and has been in compliance in all material respects with all Environmental Laws and there has been no release or, to such Person’s knowledge, threatened release of any Hazardous Material, on, upon, into or from any site currently or previously owned, leased or otherwise used by the Note Parties and their Subsidiaries. There have been no Hazardous Materials generated by any Note Party or any of its Subsidiaries that have been disposed of or come to rest at any site that has been included in any published U.S. federal, state or local “superfund” site list or any other similar list of hazardous or toxic waste sites published by any governmental authority in the United States. There are no underground storage tanks located on, no polychlorinated biphenyls (“PCBs”) or PCB-containing equipment used or stored on, and no hazardous waste as defined by the Resource Conservation and Recovery Act, as amended, stored on, any site owned or operated by any Note Party or any of its Subsidiaries, except for the storage of hazardous waste in compliance with Environmental Laws. The Note Parties have made available to the Purchasers true and complete copies of all material environmental records, reports, notifications, certificates of need, permits, pending permit applications, correspondence, engineering studies and environmental studies or assessments.

7.10 Insurance.

(a) The properties of the Note Parties and their Subsidiaries are insured with financially sound and reputable insurance companies that are not Affiliates of such Persons, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where any Note Party or any Subsidiary operates. The insurance coverage of the Note Parties and their Subsidiaries as in effect on the Closing Date is outlined as to carrier, policy number, expiration date, type, deductibles and coverage amounts on Schedule 7.10.

(b) The Note Parties and their Subsidiaries maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area in the United States and that constitutes Collateral on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Collateral Agent or the Required Purchasers.

7.11 Tax Returns and Payments. The Note Parties and their Subsidiaries have filed all federal, state and other material tax returns and reports required to be filed, and have paid all federal, state and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed tax assessment against any Note Party or any Subsidiary that could reasonably be expected to result in a material liability of such Note Party or Subsidiary. Neither any Note Party nor any Subsidiary thereof is party to any tax sharing agreement with any Person that is not a Note Party.

7.12 ERISA Compliance.

(a) Except to the extent that any of the following has not or could not reasonably be expected to result in a Material Adverse Effect, (i) each Plan and Pension Plan is in compliance, in both form and operation with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state laws and (ii) each Pension Plan that is intended to be a qualified plan under Section 401(a) of the Internal Revenue Code has received a current favorable determination letter from the Internal Revenue Service to the effect that the form of such Pension Plan is qualified under Section 401(a) of the Internal Revenue Code and the trust related thereto has been determined by the Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Internal Revenue Code or an application for

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such a letter is currently pending with the Internal Revenue Service and nothing has occurred that would prevent, or cause the loss of, such tax-qualified status.

(b) There are no pending or, to the knowledge of the Note Parties, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan or any Pension Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan or Pension Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(c) Except to the extent that any of the following has not or could not reasonably be expected to result in a Material Adverse Effect, (i) no ERISA Event has occurred and none of the Issuer and any ERISA Affiliate is aware of any fact, event or circumstance that could reasonably be expected to constitute or result in an ERISA Event with respect to any Pension Plan, (ii) the Issuer and each ERISA Affiliate has met all material and applicable requirements under the Pension Funding Rules in respect of each Pension Plan, and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for or obtained, (iii) as of the most recent valuation date for any Pension Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Internal Revenue Code) is sixty percent (60%) or higher and none of the Issuer and any ERISA Affiliate knows of any facts or circumstances that could reasonably be expected to cause the funding target attainment percentage for any such plan to drop below sixty percent (60%) as of the next valuation date, (iv) none of the Issuer and any ERISA Affiliate has incurred any liability to the PBGC other than for the payment of premiums, and there are no premium payments which have become due that are unpaid, (v) none of the Issuer and any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA, and (vi) no Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or circumstance has occurred or exists that could reasonably be expected to cause the PBGC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.

(d) Except to the extent that any of the following has not or could not reasonably be expected to result in a Material Adverse Effect, none of the Issuer and any of its Subsidiaries has established or otherwise has any liability with respect to a “welfare plan”, as such term is defined in Section 3(1) of ERISA, that either provides post-employment welfare benefits other than as required by Section 4980B of the Internal Revenue Code (or similar state law) or is a health or life insurance plan that is not fully insured by a third party insurance company.

7.13 Subsidiaries and Capitalization; Management Fees.

(a) Set forth on Schedule 7.13(a) is a complete and accurate list as of the Closing Date of each Subsidiary of any Note Party, together with the (i) jurisdiction of organization, (ii) percentage of outstanding shares of each class owned (directly or indirectly) by any Note Party or any Subsidiary, (iii) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights with respect thereto and (iv) number of shares of each class of Equity Interests outstanding and the number of shares of each class owned (directly or indirectly) by any Note Party or any Subsidiary.

(b) The authorized capital stock of the Issuer consists of 300,000,000 shares of Common Stock and 50,000,000 shares of preferred stock, $0.0001 par value per share (“Preferred Stock”). At the close of business on October 27, 2022, (i) 142,381,222 Shares of Common Stock were issued and outstanding, (ii) no shares of Preferred Stock were issued and outstanding, (iii) 29,145,396 Shares of Common Stock were reserved and available for issuance pursuant to the Equity Incentive Plan, (iv)

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30,355,566 Shares of Common Stock were reserved and available for issuance upon exercise of outstanding Existing Warrants and (v) 27,077,304 Shares of Common Stock were reserved and available for issuance pursuant to the B. Riley Purchase Agreement. Schedule 7.13(b) sets forth all options or restricted stock units granted and outstanding pursuant to the Equity Incentive Plan (or any other equity incentive plan of the Issuer) and all shares reserved for future issuance pursuant to such plan (or any other equity incentive plan of the Issuer) as of the Closing Date. All issued and outstanding Equity Interests of the Note Parties and each of their Subsidiaries are duly authorized and validly issued, fully paid, non-assessable, free and clear of all Liens and such Equity Interests were issued in compliance with all applicable Laws. All Shares of Common Stock issuable upon conversion of the Convertible Notes or exercise of the Warrants, as applicable, shall be, upon issuance, and the Issuer shall take all such reasonable actions as may be necessary or appropriate to cause such Shares to be, validly issued, fully paid and non-assessable, issued without violation of any preemptive or similar rights of any stockholder or other securityholder of the Issuer, free and clear of all taxes, liens, and charges and, subject to and in accordance with the applicable provisions of the Investor Rights Agreement, eligible to be registered for resale under the Securities Act. As of the Closing Date, except (i) as described on Schedule 7.13(b), (ii) as contained in the Issuer’s Organization Documents and this Agreement, and (iii) as described in and contemplated by the B. Riley Purchase Agreement, the Equity Incentive Plan, the Existing Warrants, and the Staton Subscription Agreement, there are no outstanding agreements, commitments or other obligations of the Issuer or any Subsidiary relating to the registration, sale or transfer (including agreements relating to rights of first refusal, rights of first offer, pre-emptive rights, tagalong rights or drag-along rights), and no rights of any Person to acquire, any shares of any Equity Interests of the Issuer or any of its Subsidiaries. Other than pursuant to the Investor Rights Agreement, the Strategic Cooperation Agreement, the FP Note Documents, the LM/BP Note Documents, or the Staton Subscription Agreement, there are no agreements (voting or otherwise) among the Issuer’s equity holders with respect to any other aspect of the Issuer’s or any Subsidiary’s affairs, except as set forth on Schedule 7.13(b) or as contained the Issuer’s Organization Documents.

(c) As of the Closing Date, other than the Broken Sound Lease, no Note Party, nor any of their respective Subsidiaries, directly or indirectly, are obligated to pay any management, consulting, transaction or similar advisory fees (other than normal and reasonable compensation (including in the form of Equity Interests) and reimbursement of expenses, in each case, of officers and directors in the ordinary course of business) to or for the account of any holder (or any Affiliate of any holder) of at least 5% of the Equity Interests of such Person.

7.14 Margin Regulations; Investment Company Act.

(a) No Note Party is engaged and no Note Party will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each issuance and purchase of Convertible Notes, not more than 25% of the value of the assets (either of the Issuer only or of the Note Parties and their Subsidiaries on a consolidated basis) will be margin stock.

(b) No Note Party, any Person Controlling any Note Party, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

7.15 Disclosure; SEC Reports; Financial Statements; Sarbanes-Oxley Act.

(a) Each Note Party has disclosed to the Purchasers all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known

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to it, that, either individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether written or oral) (other than forward-looking information and projections and information of a general economic nature and general information about the Note Parties’ industry) by or on behalf of any Note Party to any Purchaser in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Note Document (in each case, as modified or supplemented by other information so furnished) contains, or at the Closing Date will contain, any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Each Note Party represents, with respect to projections, estimates, budgets and other forward-looking information, only that such information was prepared in good faith based on assumptions believed to be reasonable at the time such projections were prepared, it being understood that such projections are not to be viewed as facts or as a guarantee of performance or achievement of any particular results and that actual results may vary from projected results (many of which factors are beyond the control of the Issuer and its Subsidiaries and their respective officers, representatives and advisors) and that such variances may be material and that no assurance can be given that the projected results will be realized.

(b) The Issuer has filed or furnished, as applicable, with the SEC, on a timely basis, all reports, schedules, forms, statements and other documents required to be filed or furnished, as applicable, by the Issuer with the SEC pursuant to the Securities Act or the Exchange Act prior to the date of this Agreement (collectively, the “Issuer SEC Documents”), except as may be disclosed in the Issuer SEC Documents. Except as may be disclosed in the Issuer SEC Documents, as of their respective effective dates (in the case of Issuer SEC Documents that are registration statements filed pursuant to the requirements of the Securities Act) and as of their respective SEC filing dates (in the case of all other Issuer SEC Documents), the Issuer SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, applicable to such Issuer SEC Documents, and none of the Issuer SEC Documents as of such respective dates (or, if amended prior to the date hereof, the date of the filing of such amendment, with respect to the disclosures that are amended) contained any untrue statement of a material fact or omitted, or will have omitted, 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, not misleading. As of the date hereof, (i) none of the Issuer’s Subsidiaries is required to file any documents with the SEC, (ii) there are no outstanding or unresolved comments in comment letters from the SEC staff with respect to any of the Issuer SEC Documents and (iii) to the Issuer’s knowledge, none of the Issuer SEC Documents is the subject of ongoing SEC review, outstanding SEC comment or outstanding SEC investigation. Except as may be disclosed in the Issuer SEC Documents, each of the certifications and statements relating to the Issuer SEC Documents required by: (A) Rule 13a-14 or Rule 15d-14 under the Exchange Act, (B) 18 U.S.C. §1350 (Section 906 of the Sarbanes­Oxley Act) or (C) any other rule or regulation promulgated by the SEC or applicable to the Issuer SEC Documents (collectively, the “Issuer Certifications”) is accurate and complete, and complies as to form and content with all applicable Laws in all material respects.

(c) Except as may be disclosed in the Issuer SEC Documents, the consolidated financial statements of the Issuer (including all related notes or schedules) included or incorporated by reference in the Issuer SEC Documents (i) complied, as of their respective dates of filing with the SEC, in all material respects with the published rules and regulations of the SEC with respect thereto, (ii) present fairly, in all material respects, the consolidated financial position of the Issuer and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods covered thereby (subject, in the case of unaudited quarterly financial statements, to normal year-end adjustments), (iii) have been prepared in all material respects in accordance with GAAP ((except (i) for such adjustments

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to accounting standards and practices as are noted therein and (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) applied on a consistent basis during the periods covered thereby (except (A) as may be indicated in the notes thereto or (B) as permitted by Regulation S-X), and (iv) were prepared in accordance with the books of account and other financial records of the Issuer and its Subsidiaries (except as may be indicated in the notes thereto).

(d) Neither the Issuer nor any of its Subsidiaries has any liabilities of any nature (whether accrued, absolute, contingent or otherwise) that would be required under GAAP, as in effect on the date hereof, to be reflected on a consolidated balance sheet of the Issuer (including the notes thereto) except liabilities as, individually or in the aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect.

(e) Except as may be disclosed in the Issuer SEC Documents or Schedule 7.15(e), the Issuer has established and maintains, and at all times since March 4, 2021 has maintained, disclosure controls and procedures and a system of internal controls over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. Except as may be disclosed in the Issuer SEC Documents or Schedule 7.15(e), neither the Issuer nor, to the Issuer’s knowledge, the Issuer’s independent registered public accounting firm, has identified or been made aware of any “significant deficiency” or “material weakness” (as defined by the Public Company Accounting Oversight Board) in the design or operation of the Issuer’s internal controls over financial reporting which would reasonably be expected to adversely affect in any material respect the Issuer’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated. The Issuer is, and has been at all times since March 25, 2022, in compliance in all material respects with the applicable listing requirements and corporate governance rules and regulations of the NYSE, and has not since March 25, 2022 received any notice asserting any non-compliance with the listing requirements of the NYSE.

(f) The Issuer’s auditor has at all times since the date of enactment of the Sarbanes­Oxley Act been: (i) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes­Oxley Act); (ii) “independent” with respect to the Issuer within the meaning of Regulation S­X under the Exchange Act; and (iii) to the Issuer’s knowledge, in compliance with subsections (g) through (l) of Section 10A of the Exchange Act and the rules and regulations promulgated by the SEC and the Public Company Accounting Oversight Board thereunder. All non­audit services performed by the Issuer’s auditors for the Issuer that were required to be approved in accordance with Section 202 of the Sarbanes­Oxley Act were so approved.

7.16 Compliance with Laws.

Each Note Party and each Subsidiary is in compliance with the requirements of all Laws and all judgments, orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or judgment, order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to be material in any respect.

7.17 Intellectual Property; Licenses, Etc.

(a) Except as set forth in Schedule 7.17 Part (a), each Note Party and Subsidiary of a Note Party is the sole and exclusive owner of or has a valid right to use all of its Note Party Intellectual

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Property, and the Note Party Intellectual Property owned by such Note Party or Subsidiary is free and clear of any liens, security interests, joint or co-ownership rights, restrictions on use or other encumbrances (other than non-exclusive licenses granted in the ordinary course of business by such Note Party or Subsidiary). The Note Party Intellectual Property constitutes all of the Intellectual Property necessary to operate the business of the Note Parties and their Subsidiaries as now conducted. No Note Party has abandoned any rights in or to any material Note Party Intellectual Property. Each Note Party or Subsidiary has taken commercially reasonable steps to maintain and protect the Note Party Intellectual Property owned by such Note Party or Subsidiary. Each Note Party and its Subsidiaries has entered into commercially reasonable confidentiality and nondisclosure agreements with all employees and third Persons to which such Note Party or Subsidiary has provided access to any material Note Party Intellectual Property, which agreements impose commercially reasonable confidentiality restrictions on such employees and third Persons.

(b) Schedule 7.17 Part (b) sets forth a true, complete and accurate list of all domain names owned by each Note Party or Subsidiary, all patents and patent applications owned by such Note Party or Subsidiary, and all other Intellectual Property, in each foregoing case, owned by such Note Party or Subsidiary that has been registered, or for which an application for registration has been filed and pending with, the United States Patent and Trademark Office, the United States Copyright Office or any foreign governmental agency or authority (collectively, the “Registered Intellectual Property”). Each item of Registered Intellectual Property (excluding any pending application) is subsisting, and to each Note Party’s knowledge, valid, enforceable, subsisting, unexpired and has not been abandoned or canceled.

(c) Schedule 7.17 Part (c) sets forth a true, complete and correct list of (i) all material options, licenses, sublicenses, and other agreements or arrangements to which any Note Party or Subsidiary is a party, or by which such Note Party or Subsidiary is bound, and pursuant to which any other Person is authorized to use of, Intellectual Property owned by such Note Party or Subsidiary, or to exercise any other use or licensing right with regard thereto (other than non-disclosure agreements that permit the review or evaluation of the Note Party Intellectual Property without providing any rights to use such Intellectual Property or non-exclusive licenses granted to customers in the ordinary course of business), and (ii) all material options, licenses, sublicenses, and other agreements or arrangements pursuant to which any Note Party or Subsidiary has been granted a license (other than licenses of “off the shelf” commercially available standard end-user, object code, internal use software) to or the right to use any Intellectual Property of a third party (together with the options, licenses, sublicenses, agreements and other arrangements set forth in clause (i), “Intellectual Property Licenses”). Each of the Intellectual Property Licenses is a legal, valid, binding and enforceable obligation of each Note Party party thereto, and to each Note Party’s knowledge, each other party thereto. No Note Party or Subsidiary, nor to such Note Party’s knowledge any other party to any Intellectual Property License, is in material breach or default under such Intellectual Property License, and no event has occurred that with notice or lapse of time would constitute a material breach or default by such Note Party or Subsidiary (or to such Note Party’s knowledge any other party thereto) or permit termination, thereunder. No notice of default with respect to any such Intellectual Property License has been sent or received by any Note Party or Subsidiary .

(d) Except as set forth on Schedule 7.17 Part (d), each Note Party and Subsidiary has obtained and possesses licenses, which to such Note Party’s knowledge are valid, to use all of the software programs present on the computers and other software enabled electronic devices that it owns or leases or that it has otherwise provided to its employees for their use in connection with such Note Party’s or Subsidiary’s business.

(e) No Note Party nor any Subsidiary is obligated to pay any royalties or other payments to third parties with respect to the marketing, sale, distribution, manufacture, license or use of any Note

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Party Intellectual Property (other than license and maintenance fees for licenses of “off the shelf” commercially available standard end-user, object code, internal use software).

(f) To the knowledge of the Note Parties, neither the conduct of the each Note Party’s and Subsidiary’s business as now conducted (including, without limitation, such Note Party’s or Subsidiary’s marketing and sale of products and services), nor such Note Party’s or Subsidiary’s use of the Note Party Intellectual Property owned by such Note Party or Subsidiary infringes upon, violates or misappropriates the Intellectual Property of any third party, and there are no pending or, to the knowledge of any Note Party or Subsidiary, threatened, proceedings or litigation or other adverse claims or communications by any Person alleging any such infringement, violation or misappropriation. None of the Note Party Intellectual Property is subject to any outstanding order, action, suit, proceeding, hearing, investigation, charge, complaint, claim or demand to which any Note Party or Subsidiary is a party or of which any Note Party or Subsidiary has knowledge (for purposes of this Section 7.17(f), “Claim”), nor to the any Note Party’s or Subsidiary’s knowledge has any been threatened, which challenges the validity, enforceability, use or ownership of such Note Party Intellectual Property, and, to such Note Party’s or Subsidiary’s knowledge, there is no valid basis for such a Claim. To the knowledge of each Note Party and Subsidiary, no Person is infringing upon or otherwise violating any of such Note Party’s or Subsidiary’s rights in the Note Party Intellectual Property. Neither the execution nor delivery of this Agreement and the other Note Documents, nor the performance and consummation of each Note Party’s obligations hereunder and thereunder, shall cause the diminution, termination or forfeiture of such Note Party’s or Subsidiary’s rights in, or require the consent of any third party in respect of, any Note Party Intellectual Property owned or, to each Note Party’s and Subsidiary’s knowledge, licensed by a Note Party or a Subsidiary.

(g) To each Note Party’s and Subsidiary’s knowledge, it shall not be necessary to utilize any inventions of any of its employees, consultants or contractors (or persons it intends to hire) made prior to or outside the scope of their employment by, or performance of services for, such Note Party or Subsidiary for such Note Party’s or Subsidiary’s business as now conducted or as currently proposed to be conducted. Each Note Party and Subsidiary has secured from all employees, consultants and contractors of such Note Party or Subsidiary who have contributed to the creation or development of any Note Party Intellectual Property owned or purported to be owned by such Note Party or Subsidiary valid and binding written assignments of all rights, including all Intellectual Property rights, to such contributions. No Note Party or Subsidiary has granted to any Person an exclusive license or equivalent right with respect to any of the Note Party Intellectual Property, or assigned or conveyed to any Person any ownership interest (including joint ownership rights) therein, and no third party owns or holds any such right, license or interest.

(h) All personally identifiable information used by or in the possession of any Note Party or Subsidiary has been collected, stored, maintained and used by such Note Party or Subsidiary in accordance with all applicable legal requirements including such Note Party’s or Subsidiary’s (and its users’) applicable privacy policies.

(i) To the knowledge of the Note Parties, no Note Party nor any Subsidiary has embedded any open source, copyleft or community source code in any of its products generally available or in development, including but not limited to any libraries or code licensed under any General Public License, Lesser General Public License or similar license arrangement that, as a condition of modification or distribution of the third party software subject to such open source license: (i) requires the disclosure and/or distribution in source code form of any of such Note Party’s or Subsidiary’s proprietary software or other Note Party Intellectual Property, derivative works thereof and/or other software incorporated into, derived from or distributed with such proprietary software or other Note Party Intellectual Property; (ii)

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prohibits or limits such Note Party or Subsidiary from charging a fee or receiving consideration in connection with distributing any of such Note Party’s or Subsidiary’s proprietary software or other Note Party Intellectual Property and/or derivative works thereof; or (iii) requires the licensing to third parties of any of such Note Party’s or Subsidiary’s proprietary software or other Note Party Intellectual Property, derivative works thereof and/or other software incorporated into, derived from or distributed with such proprietary software or other Note Party Intellectual Property.

7.18 Solvency.

The Issuer is Solvent on an individual basis, and the Issuer and its Subsidiaries are Solvent on a consolidated basis.

7.19 Perfection of Security Interests in the Collateral.

The Collateral Documents create valid security interests in, and Liens on, the Collateral purported to be covered thereby, which security interests and Liens will be, upon the timely and proper filings, deliveries, notations and other actions contemplated in the Collateral Documents, perfected security interests and Liens (to the extent that such security interests and Liens can be perfected by such filings, deliveries, notations and other actions contemplated in the Collateral Documents), prior to all other Liens other than Permitted Liens.

7.20 Business Locations.

Set forth on Schedule 7.20(a) is a list of all real property that is owned or leased by the Note Parties as of the Closing Date (with (x) the address of each real property, (y) a designation of whether such real property is owned or leased and (z) if any Note Party maintains books and records at such real property). Set forth on Schedule 7.20(b) is the tax payer identification number and organizational identification number of each Note Party as of the Closing Date. The exact legal name and jurisdiction of organization of (a) the Issuer is as set forth on Schedule 7.20(b) and (b) each Guarantor is (i) as set forth on Schedule 7.20(b), (ii) as set forth in the Joinder Agreement pursuant to which such Guarantor became a party hereto. Except as set forth on Schedule 7.20(c), no Note Party has during the five years preceding the Closing Date (i) changed its legal name, (ii) changed its jurisdiction of organization, or (iii) been party to a merger, amalgamation, consolidation or such other structural change.

7.21 Sanctions Concerns; Anti-Corruption Laws; PATRIOT Act.

(a) Sanctions Concerns. No Note Party, nor any Subsidiary, nor, to the knowledge of the Note Parties and their Subsidiaries, any director, officer, employee, agent, Affiliate or representative thereof, is an individual or entity that is, or is owned or controlled by, any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority of the United States, United Nations, European Union or United Kingdom or (iii) located, organized or resident in a Designated Jurisdiction.

(b) Anti-Corruption Laws. The Note Parties and their Subsidiaries have conducted their business in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other applicable jurisdictions, and have instituted and maintained policies and procedures designed to promote and achieve compliance with such Laws.

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(c) PATRIOT Act. To the extent applicable, each Note Party and each Subsidiary is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto and (ii) the PATRIOT Act.

7.22 Limited Offering of Convertible Notes .

None of the Note Parties nor anyone acting on their behalf has offered or will offer to sell the Convertible Notes or any similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any Person, so as to require the issuance and sale of the Convertible Notes to be registered under the Securities Act or applicable securities laws of any other jurisdiction. None of the Note Parties nor anyone acting on their behalf has engaged, directly or indirectly, in any form of general solicitation or general advertising with respect to the offering of the Convertible Notes (as those terms are used in Regulation D) or otherwise in any manner involving a public offering within the meaning of Section 4(a)(2) of the Securities Act. Assuming the accuracy and completeness of the representations and warranties of the Purchasers set forth in Article VII-A below, the offer and sale of the Convertible Notes are exempt from registration under the Securities Act and any applicable securities laws of any other jurisdiction.

7.23 Registration Rights; Issuance Taxes.

(a) Except as set forth in Schedule 7.23, the Issuer is not under any requirement to register under the Securities Act, or the Trust Indenture Act of 1939, as amended, any of its presently outstanding securities or any of its securities that may subsequently be issued.

(b) All taxes imposed on the Issuer in connection with the issuance, sale and delivery of the Convertible Notes have been or will be fully paid, and all Laws imposing such taxes have been or will be fully satisfied by the Issuer.

(c) No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification Event”) is applicable to the Issuer or, to the Issuer’s knowledge, any Issuer Covered Person, except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or (d)(3) is applicable.

7.24 Material Contracts; Government Contracts.

(a) Except for the contracts, agreements, licenses and other Contractual Obligations set forth on Schedule 7.24(a) as of the Closing Date, none of the Note Parties and their Subsidiaries is party to, or any of its property is bound by, (x) any contract, agreement, license or other Contractual Obligation that is anticipated to contribute more than $5,000,000 of revenue on an annual basis or require payment of more than $5,000,000 in any year or (y) any contract, agreement, license or other Contractual Obligation to which any Note Party or any Subsidiary is a party, or any of its property is bound by, and the breach, nonperformance or cancellation of which, or the failure of which to renew, could reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 7.24(b), none of the Note Parties or their Subsidiaries is party to, or any of its property bound by, any contract, agreement, license or other Contractual Obligation (1) providing for the grant of rights to manufacture, produce, assemble, license, market, or sell its products to any other Person that limits any Note Party or any Subsidiary’s exclusive right to develop, manufacture, assemble, distribute, market or sell its products, (2) containing limitations

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on any Note Party’s or any Subsidiary’s ability to compete in any business or activity or with any Person or in any geographic area or during any period of time, or that limits the ability of any Note Party or any Subsidiary to own, operate, sell, transfer, pledge or otherwise dispose of or encumber any asset, (3) containing a “most favored nation” or “most favored customer” clause or (4) containing any sole source or exclusive supplier obligations for goods or services supplied to any Note Party or any Subsidiary. The consummation of the transactions contemplated by the Note Documents will not give rise to a right of termination in favor of any party to any Material Contract. Each Material Contract (a) is in full force and effect and is binding upon and enforceable against the Note Parties and their Subsidiaries party thereto and, to the knowledge of any Note Party, all other parties thereto in accordance with its terms, and (b) is not currently subject to any material breach or default by any Note Party or any Subsidiary or, to the knowledge of any Note Party, any other party thereto. No Note Party nor any of its Subsidiaries has taken or failed to take any action that would permit any other Person party to any Material Contract to have, and, to the knowledge of any Note Party, no such Person otherwise has, any defenses, counterclaims or rights of setoff thereunder.

(b) No Note Party or Subsidiary is currently in, and the execution and delivery of the Note Documents and the consummation of the transactions contemplated thereby will not result in, any material violation, breach or default of any term or provision of any Government Contract or Government Subcontract. All representations and certifications with respect to any Government Contract or Government Subcontract made by any Note Party or Subsidiary were current, accurate and complete in all material respects when made, and each Note Party and Subsidiary has complied in all material respects with all such representations and certifications.

(c) Each Note Party and Subsidiary has complied in all material respects with all requirements of the Government Contracts or Government Subcontracts and any law relating to the safeguarding of, and access to, classified information and sensitive but unclassified information. No Note Party nor Subsidiary has been suspended or debarred from bidding on contracts or subcontracts with any governmental entity in connection with the conduct of its business; no such suspension or debarment has been initiated or, to the knowledge of such Note Party or Subsidiary, threatened.

(d) To the knowledge of the Note Parties and their Subsidiaries, there is no ongoing proceeding by any governmental entity relating to any Government Contract or Government Subcontract or the violation of any law relating to any Government Contract or Government Subcontract. There are no outstanding written claims between any Note Party or Subsidiary and any prime contractor, subcontractor, vendor or other third party arising under or relating to any Government Contract or Government Subcontract.

(e) Each of the Note Parties and their Subsidiaries has complied with proprietary marking requirements of governmental entities for proposal submissions in response to solicitations and deliverable submissions under Government Contracts and Government Subcontracts.

7.25 Employee Agreements; Data Privacy.

(a) Each current employee, consultant and officer of each of the Note Parties and their Subsidiaries and each former Key Employee has executed an agreement with such Person regarding confidentiality and proprietary information substantially in the form or forms delivered to the Purchasers (the “Confidential Information Agreements”). No current or former Key Employee has excluded works or inventions from his or her assignment of inventions pursuant to such Key Employee’s Confidential Information Agreement. Each current and former Key Employee has executed a non-solicitation agreement

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substantially in the form or forms delivered to counsel for the Purchasers. None of the Note Parties is aware that any of its Key Employees is in violation of any agreement covered by this Section 7.25(a).

(b) In connection with its collection, storage, transfer (including, without limitation, any transfer across national borders) and/or use of any personally identifiable information from any individuals, including, without limitation, any customers, prospective customers, employees and/or other third parties (collectively “Personal Information”), each of the Note Parties and their Subsidiaries is and has been in compliance in all material respects with all applicable laws in all relevant jurisdictions. Each of the Note Parties and their Subsidiaries has commercially reasonable physical, technical, organizational and administrative security measures and policies in place designed to protect all Personal Information collected by it or on its behalf from and against unauthorized access, use and/or disclosure. Each of the Note Parties and their Subsidiaries is and has been in compliance in all material respects with all laws relating to data loss, theft and breach of security notification obligations.

7.26 Labor Matters.

There are no existing or, to the knowledge of the Note Parties, threatened strikes, lockouts or other labor disputes involving any Note Party or any Subsidiary that singly or in the aggregate could reasonably be expected to have a Material Adverse Effect. Hours worked by and payment made to employees of the Note Parties and their Subsidiaries are not in violation in any material respect of the Fair Labor Standards Act or any other applicable law, rule or regulation dealing with such matters.

7.27 Affected Financial Institution.

No Note Party or any of their Subsidiaries is an Affected Financial Institution.

7.28 Ranking of Convertible Notes.

The Indebtedness represented by the Convertible Notes and the other Obligations under the applicable Note Documents of each Note Party is intended to constitute senior secured Indebtedness, and accordingly is, and shall be, at all times while the Convertible Notes and the other Obligations remain outstanding, pari passu or senior in right of payment to all Indebtedness (if any) of such Note Party, other than the Indebtedness incurred under the FP Note Documents and the LM/BP Note Documents.

7.29 Regulation H.

No real property subject to a Mortgage is a Flood Hazard Property unless the Purchasers and the Collateral Agent shall have received the following: (a) the applicable Note Party’s written acknowledgment of receipt of written notification from the Required Purchasers (i) as to the fact that such real property is a Flood Hazard Property and (ii) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program, (b) copies of insurance policies or certificates of insurance of the applicable Note Party evidencing flood insurance reasonably satisfactory to the Secured Parties and naming the Collateral Agent as additional loss payee on behalf of the Secured Parties and (c) such other flood hazard determination forms, notices and confirmations thereof as requested by the Required Purchasers and the Collateral Agent. All flood hazard insurance policies required hereunder have been obtained and remain in full force and effect, and the premiums thereon have been paid in full.

7.30 Strategic Cooperation Agreement.

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The Strategic Cooperation Agreement (a) is in full force and effect and is binding upon and enforceable against any Note Party and any Subsidiary bound thereby in accordance with its terms, and (b) no Note Party or Subsidiary is currently in material breach or default thereunder.

ARTICLE VII-A
REPRESENTATIONS OF THE PURCHASERS

Each Purchaser represents and warrants to (and solely for the benefit of) the Note Parties as of the Closing Date, that:

(a) such Purchaser is an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act and the Convertible Notes to be acquired by it pursuant to this Agreement are being acquired for its own account and not with a view to any distribution thereof or with any present intention of offering or selling any of the Convertible Notes in a transaction that would violate the Securities Act or the securities laws of any state of the United States or any other applicable jurisdiction;

(b) such Purchaser has such knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Convertible Notes and such Purchaser is capable of bearing the economic risks of such investment and acknowledges that the Convertible Notes as of the date hereof, have not been registered under the Securities Act or the securities laws of any state or other jurisdiction;

(c) such Purchaser acknowledges that the Note Parties and, for purposes of the opinions to be delivered to the Purchasers pursuant hereto, counsel to the Note Parties and their Affiliates will rely upon the accuracy and truth of the foregoing representations and in this Article VII-A and hereby consents to such reliance; and

(d) such Purchaser is not a “foreign person,” as defined at 31 C.F.R. § 800.224, and is not otherwise controlled by a “foreign person,” as defined at 31 C.F.R. § 800.224.

Article VIII
AFFIRMATIVE COVENANTS

So long as any Convertible Note or other Obligation hereunder shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim has been asserted), each Note Party shall and shall cause each Subsidiary to:

8.01 Financial Statements.

(a) Deliver to the Purchasers within (i) one hundred and twenty (120) days after the end of the fiscal year ending December 31, 2022 and (y) one hundred and five (105) days after the fiscal year ending December 31, 2023 and the end of each fiscal year thereafter of the Issuer (or if earlier, when filed with a Governmental Authority), a consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such fiscal year, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited and accompanied by an unqualified report and opinion of an independent certified public accountant of

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nationally recognized standing, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit (except from (i) an impending maturity date under the Convertible Notes, the FP Notes or the LM/BP Notes solely in the case of the audit delivered with respect to the fiscal year immediately prior to the fiscal year during which such maturity or expiration is scheduled or (ii) any actual or prospective financial covenant default under Section 9.17, any financial covenant under the FP Note Purchase Agreement or any financial covenant under the LM/BP Note Purchase Agreement); and

(b) Deliver to the Purchasers within (i) sixty (60) days after the end of the fiscal quarters ending September 30, 2022 and March 31, 2023 and (ii) forty five (45) days after the fiscal quarters ending June 30, 2023 and September 30, 2023 and the end of each of the first three fiscal quarters of each fiscal year ending thereafter of the Issuer (or, if earlier, when filed with a Governmental Authority), a consolidated balance sheet of the Issuer and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated statements of income or operations, changes in shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Issuer’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of the Issuer as fairly presenting in all material respects the financial condition, results of operations, shareholders’ equity and cash flows of the Issuer and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes.

(c) To the extent any such information is not furnished within the time periods specified above and such information is subsequently furnished (including upon becoming publicly available, by filing such information with the SEC), the Issuer shall be deemed to have satisfied its obligations with respect thereto as such time and any Default with respect thereto shall be deemed to have been cured.

8.02 Certificates; Other Information.

Deliver to each Purchaser, in form and detail satisfactory to the Required Purchasers:

(a) Concurrently with the delivery of the quarterly and annual reports referred to in Section 8.01 (i) a duly completed Compliance Certificate signed by a Responsible Officer of the Issuer, certifying as to (x) compliance with the financial covenants contained in Section 9.17, including a calculation of the amont of unrestricted cash and Cash Equivalents required by Section 9.17(a), and (y) whether a Default has occurred and is continuing as of the date thereof and, if a Default has occurred and is continuing as of the date thereof, specifying the details thereof and any action taken or proposed to be taken with respect thereto; and (ii) a written summary, such as the summary included within the financial statements delivered in accordance with Section 8.01, describing how any changes in GAAP during such period directly and materially impacted such financial statements;

(b) as soon as practicable, and in any event not later than thirty (30) days after the commencement of each fiscal year of the Issuer, an annual business plan and budget of the Note Parties and their Subsidiaries for such fiscal year containing, among other things, projections for each quarter of such fiscal year, in form and substance reasonably satisfactory to the Required Purchasers;

(c) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the equity holders of any Note Party, and copies of any annual, regular, periodic and special reports and registration statements which a Note Party may file or be

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required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to the Purchasers pursuant hereto;

(d) concurrently with the delivery of the financial statements in accordance with Section 8.01, a certificate of a Responsible Officer of the Issuer containing information regarding a list of any Material Contracts entered into (and, if requested by the Required Purchasers and subject to the confidentiality obligations of the Issuer and any of its Subsidiaries owing to the counterparty to such Material Contract and subject to applicable regulations limiting the disclosure of such Material Contracts, copies of such Material Contracts to be provided to and reviewed by counsel to the Required Purchasers), in each case, during the period covered by such financial statements;

(e) promptly after any request by any Purchaser, copies of any detailed audit reports, management letters or recommendations submitted to the Board of Directors (or the audit committee of the Board of Directors) of any Note Party by independent accountants in connection with the accounts or books of a Note Party or any Subsidiary, or any audit of any of them;

(f) promptly after the furnishing thereof, copies of any statement or report furnished to any holder of debt securities of any Note Party or any Subsidiary pursuant to the terms of any indenture, loan or credit or similar agreement, including under the Working Capital Facility, and not otherwise required to be furnished to the Purchasers pursuant to Section 8.01 or any other clause of this Section 8.02;

(g) promptly, and in any event within five (5) Business Days after receipt thereof by any Note Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Note Party or any Subsidiary thereof;

(h) promptly, such additional information regarding the business, financial or corporate affairs of any Note Party or any Subsidiary, or compliance with the terms of the Note Documents, as any Purchaser may from time to time reasonably request;

(i) concurrently with the delivery of the financial statements referred to in Section 8.01, a certificate of a Responsible Officer of the Issuer (i) listing (A) all applications by any Note Party, if any, for Registered Intellectual Property made since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (B) all issuances of registrations or letters on existing applications by any Note Party for Registered Intellectual Property received since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), (C) all Intellectual Property Licenses entered into by any Note Party since the date of the prior certificate (or, in the case of the first such certificate, the Closing Date), and (D) such supplements to Schedule 7.17 as are necessary to cause such schedule to be true and complete as of the date of such certificate and (ii) with respect to any insurance coverage of any Note Party or any Subsidiary that was renewed, replaced or modified during the period covered by such financial statements, such updated information with respect to such insurance coverage as is required to be included on Schedule 7.10; and

(j) concurrently with the delivery thereof to the Collateral Agent, copies of all documents, notices, agreements, schedules and possessory collateral delivered to the Collateral Agent pursuant to any Collateral Document.

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Documents required to be delivered pursuant to Section 8.01 or Section 8.02 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Issuer posts such documents, or provides a link thereto on the Issuer’s website on the Internet at the website address listed on Schedule 12.02, or (ii) on which such documents are posted on the Issuer’s behalf on an Internet or intranet website, if any, to which each Purchaser has access (whether a commercial or third-party website); provided, that: (x) the Issuer shall deliver paper copies of such documents to the any Purchaser upon its request to the Issuer, and shall continue to deliver such paper copies until a written request to cease delivering paper copies is given by such Purchaser and (y) the Issuer shall notify each Purchaser (by facsimile or electronic mail) of the posting of any such documents and provide to each Purchaser by electronic mail electronic versions (i.e., soft copies) of such documents.

8.03 Notices.

(a) Promptly (and in any event, within two (2) Business Days) notify each Purchaser of the occurrence of any Default.

(b) Promptly (and in any event, within five (5) Business Days) notify each Purchaser of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(c) Promptly (and in any event, within five (5) Business Days) notify each Purchaser of the occurrence of any ERISA Event that could reasonably be expected to result in liability in an amount greater than the Threshold Amount.

(d) Promptly (and in any event, within five (5) Business Days) notify each Purchaser of any material change in accounting policies or financial reporting practices by any Note Party or any Subsidiary.

(e) Promptly (and in any event, within three (3) Business Days) notify each Purchaser of any litigation, arbitration or governmental investigation or proceeding not previously disclosed by a Note Party which has been instituted or, to the knowledge of the Note Parties, is threatened against a Note Party or any of its Subsidiaries or to which any of the properties of any thereof is subject which could reasonably be expected to result in losses and/or expenses in excess of the Threshold Amount.

(f) Promptly (and in any event, within five (5) Business Days following receipt by, or delivery by, a Note Party or Subsidiary, as the case may be), provide each Purchaser with information relating to (i) any material written notice alleging any breach of any Material Contract by any party thereto where such breach could result in the loss of more than $5,000,000 of revenue or liability of greater than $5,000,000, (ii) any amendment or termination of (or notice of such termination with respect to) any Material Contract (and, in each case, if requested by any Purchaser, copies of such notice, amendments terminations to be provided to and reviewed by counsel to such Purchaser); provided, however, the scope and level of detail with respect to the disclosure pursuant to the foregoing shall be subject to the confidentiality obligations of the Issuer and any of its Subsidiaries owing to the counterparty to such Material Contract and subject to applicable regulations limiting the disclosure thereof.

(g) Promptly (and in any event, within five (5) Business Days following receipt by, or delivery by, a Note Party or Subsidiary, as the case may be), provide each Purchaser with a copy of any material written notice alleging any breach of the Staton Subscription Agreement or any other documents relating to the Staton Payment Obligations, or any amendment, waiver or termination of (or notice of such

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termination with respect to) the Staton Subscription Agreement or any other documents relating to the Staton Payment Obligations.

(h) Not later than 10 days after the occurrence of a Fundamental Change, provide each Purchaser a notice (the “Fundamental Change Notice”) of the occurrence of such Fundamental Change.

(i) Promptly (and in any event, within three (3) Business Days following the execution and delivery thereof) provide each Purchaser with a copy of any amendment to the FP Note Purchase Agreement or the LM/BP Note Purchase Agreement.

Each notice pursuant to clauses (a) to (g) of this Section 8.03 shall be accompanied by a statement of a Responsible Officer of the Issuer setting forth details of the occurrence referred to therein and stating what action the applicable Note Party has taken and proposes to take with respect thereto. Each notice pursuant to Section 8.03(a) shall describe with particularity any and all provisions of this Agreement and any other Note Document that have been breached. A Fundamental Change Notice pursuant to clause (h) of this Section 8.03 shall state: (i) the events causing the Fundamental Change and (ii) the date of the Fundamental Change.

8.04 Payment of Obligations.

Pay and discharge, as the same shall become due and payable (a) all federal, state and other material tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the applicable Note Party or Subsidiary and such payment can be lawfully withheld and the failure to make payment pending such contest could not reasonably be expected to result in a Material Adverse Effect, (b) all lawful claims which has by law become a Lien upon its property as a result of non-payment (other than a Permitted Lien), and (c) all Material Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

8.05 Preservation of Existence, Etc.

(a) Preserve, renew and maintain in full force and effect its legal existence under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 9.04 or Section 9.05.

(b) Preserve, renew and maintain in full force and effect its good standing under the Laws of the jurisdiction of its organization and, except to the extent the failure to do so could not reasonably be expected to have a Material Adverse Effect, each other jurisdiction where it conducts its Business (in each case where such concept exists in such jurisdiction in the case of Non-U.S. Subsidiaries).

(c) Take all reasonable action to maintain all rights, privileges, permits, licenses and franchises the failure of which to maintain could reasonably be expected to result in a Material Adverse Effect.

(d) Preserve or renew all of its material Registered Intellectual Property or Intellectual Property in respect of which an application for registration has been filed or recorded with the United States Copyright Office or the United States Patent and Trademark Office (or comparable agencies in any applicable non-U.S. jurisdiction), in each case to the extent necessary to conduct its Business.

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8.06 Maintenance of Properties.

(a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear, casualty and condemnation excepted.

(b) Make all necessary repairs thereto and renewals and replacements thereof.

8.07 Maintenance of Insurance.

(a) Maintain with financially sound and reputable insurance companies not Affiliates of the Issuer, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons.

(b) Without limiting the foregoing, (i) maintain, if available, fully paid flood hazard insurance on all real property that is located in a special flood hazard area and that constitutes Collateral, on such terms and in such amounts as required by The National Flood Insurance Reform Act of 1994 or as otherwise required by the Required Purchasers, (ii) furnish to each Purchaser evidence of the renewal (and payment of renewal premiums therefor) of all such policies prior to the expiration or lapse thereof, and (iii) furnish to each Purchaser prompt written notice of any redesignation of any such improved real property into or out of a special flood hazard area.

(c) Cause the Collateral Agent and its successors and/or assigns to be named as Purchaser’s loss payee or mortgagee as its interest may appear, and/or additional insured with respect to any such insurance providing liability coverage or coverage in respect of any Collateral, and cause each provider of any such insurance to agree, by endorsement upon the policy or policies issued by it or by independent instruments furnished to the Collateral Agent, that it will give the Collateral Agent thirty (30) days (or ten (10) days for non-payment or such lesser amount as the Required Purchasers may agree to in their sole discretion) prior written notice before any such policy or policies shall be altered or canceled.

(d) Promptly notify the Purchasers and the Collateral Agent of any real property subject to a Mortgage that is, or becomes, a Flood Hazard Property.

8.08 Compliance with Laws.

Comply in all material respects with the requirements of all material Laws and all material orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted.

8.09 Books and Records.

(a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of such Note Party or such Subsidiary, as the case may be.

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(b) Maintain such books of record and account in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over such Note Party or such Subsidiary, as the case may be.

8.10 Inspection Rights.

Subject to a Note Party’s security clearance requirements or policies and any applicable regulation with respect thereto, permit representatives and independent contractors of each Purchaser to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Issuer and at such reasonable times during normal business hours and as often as may be desired, upon reasonable advance notice to the Issuer; provided, however, so long as no Event of Default exists, the Issuer shall only be required to reimburse the Purchasers, collectively, for two such visits and inspections in any fiscal year; provided, further, however, when an Event of Default exists, any Purchaser (or any of their respective representatives or independent contractors) may do any of the foregoing at the expense of the Issuer at any time during normal business hours, as often as desired and without advance notice.

8.11 Use of Proceeds.

Use the proceeds of the Convertible Notes (i) to fund leasehold improvements and expansion of manufacturing capacity for small satellites and (ii) for operating and working capital needs of the Issuer and its Subsidiaries related to the manufacture and sale of small satellites to Lockheed Martin and other existing customers under programs in existence on the Closing Date; provided, that, in no event shall the proceeds of the Convertible Notes be used (x) for the principal repayment or redemption of any Indebtedness of the Note Parties or any of their Subsidiaries, (y) to make Restricted Payments or (z) in contravention of any Law or of any Note Document; provided, further, that no proceeds of the Convertible Notes shall be used (i) to fund the building of a synthetic aperture radar satellite constellation or (ii) for facility expansion prior to January 1, 2023.

8.12 Additional Subsidiaries.

It is the intent of the parties that each U.S. Subsidiary of the Issuer that is a Wholly-Owned Subsidiary and established, created or acquired by the Issuer after the Closing Date and each Subsidiary that Guarantees the obligations of the Issuer under the FP Note Documents or the LM/BP Note Documents become a Guarantor hereunder. Prior to or upon the acquisition or formation of any Subsidiary or the Guarantee by such Subsidiary of the obligations under the FP Note Documents or the LM/BP Note Documents:

(a) notify the Collateral Agent and the Purchasers thereof in writing, together with the (i) jurisdiction of organization, (ii) number of shares of each class of Equity Interests outstanding, (iii) number and percentage of outstanding shares of each class owned (directly or indirectly) by any Note Party or any Subsidiary and (iv) number and effect, if exercised, of all outstanding options, warrants, rights of conversion or purchase and all other similar rights with respect thereto; and

(b) if such U.S. Subsidiary is a (A) is a Wholly-Owned Subsidiary or (B) a Subsidiary that Guarantees or is otherwise obligated in respect of any other Indebtedness for borrowed money of any Note Party, including the FP Notes and the LM/BP Notes, cause within 45 days (or such longer period of time as agreed to by the Required Purchasers in their sole discretion) (i) such Subsidiary to become a

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Guarantor by executing and delivering to the Collateral Agent and the Purchasers a Joinder Agreement or such other documents as the Required Purchasers shall reasonably request for such purpose, and (ii) deliver to the Collateral Agent documents of the types referred to in Sections 6.01(f)-(h) in order to grant Liens to the Collateral Agent for the benefit of the Secured Parties in all assets of such Subsidiary constituting Collateral and favorable opinions of counsel to such Persons (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (i) or (ii), as applicable), all in form, content and scope reasonably satisfactory to the Required Purchasers.

8.13 ERISA Compliance. Do, and make commercially reasonable efforts to cause each of its ERISA Affiliates to do, each of the following, as applicable: (a) maintain each Plan or Pension Plan, as applicable, both in form and operation, in compliance in all material respects with the applicable provisions of ERISA, the Internal Revenue Code and other federal or state law, (b) cause each Plan or Pension Plan, as applicable, that is qualified under Section 401(a) of the Internal Revenue Code to maintain such qualification, and (c) make all required contributions to any Plan or Pension Plan, as applicable, that is subject to Section 412, Section 430 or Section 431 of the Internal Revenue Code.

8.14 Pledged Assets.

(a) Equity Interests. To secure the Obligations, cause 100% of the issued and outstanding Equity Interests of each Subsidiary directly owned by any Note Party (other than any Excluded Equity Interests) to be subject at all times to a second priority (or, following the payment in full of the FP Notes and the LM/BP Notes, first priority), perfected Lien in favor of the Collateral Agent (subject to Liens permitted pursuant to Sections 9.01(c) and 9.01(h)), for the benefit of the Secured Parties, pursuant to the terms and conditions of the Collateral Documents; provided, that the Equity Interests in any foreign Subsidiary shall not be required to be perfected under foreign law. In connection with the foregoing, the Issuer shall cause to be delivered to the Collateral Agent and the Purchasers opinions of counsel requested by the Required Purchasers and any filings and deliveries necessary to perfect the security interests in such Equity Interests, all in form and substance satisfactory to the Collateral Agent and the Required Purchasers.

(b) Other Property. Cause all property (other than Excluded Property) of the Issuer and each Guarantor to be subject at all times to second priority (or, following the payment in full of the FP Notes and the LM/BP Notes, first priority), perfected and, in the case of fee-owned real property, title insured Liens in favor of the Collateral Agent to secure the Obligations pursuant to the Collateral Documents or, with respect to any such property acquired subsequent to the Closing Date, such other additional security documents, including Real Estate Security Documents, as the Collateral Agent or Required Purchasers shall request (subject to Permitted Liens), and in connection with the foregoing, deliver to the Collateral Agent and the Purchasers such other documentation as the Collateral Agent or the Required Purchasers may reasonably request, including filings and deliveries necessary to perfect such Liens, Organization Documents, resolutions, Real Estate Security Documents, and favorable opinions of counsel to such Persons and the Purchasers, all in form, content and scope reasonably satisfactory to the Collateral Agent and the Required Purchasers.

8.15 Deposit Accounts.

(a) Prior to or upon the acquisition or establishment of any Deposit Account by any Note Party, provide written notice thereof to the Collateral Agent and the Purchasers.

(b) Within thirty (30) days following the payment in full of the FP Notes and the LM/BP Notes, cause all Deposit Accounts of the Note Parties (other than Excluded Accounts) at all times to be

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subject to Deposit Account Control Agreements in each case in form and substance satisfactory to the Required Purchasers.

8.16 Intellectual Property; Consent of Licensors.

(a) (i) Maintain in full force and effect or pursue the prosecution of, as the case may be, and pay all costs and expenses relating to, all material Intellectual Property owned or exclusively licensed by such Note Party or its respective Subsidiaries, excluding the maintenance of Intellectual Property that in the commercially reasonable business judgment of the Issuer are not necessary or material for the conduct of the business of any Note Party or its Subsidiaries; (ii) notify the Purchasers, promptly after learning thereof, of any material infringement or other violation by any Person of its material Intellectual Property; (iii) use commercially reasonable efforts, consistent with past practices, to pursue, enforce, and maintain in full force and effect legal protection for all material Intellectual Property developed or controlled by such Note Party or any of its respective Subsidiaries; and (iv) notify the Purchasers, promptly after learning thereof, of any written claim by any Person that the conduct of the Businesses infringes any Intellectual Property of that Person and take such reasonable steps to address such matter.

(b) Promptly after entering into or becoming bound by any Material Contract, the Note Parties shall, subject to the confidentiality obligations of the Issuer and any of its Subsidiaries owing to the counterparty to such Material Contract and subject to applicable regulations limiting the disclosure thereof, to the extent permitted by applicable Law (i) provide written notice to the Purchasers of the material terms of such license or similar agreement or Material Contract with a description of its likely impact on the Note Parties’ business or financial condition and (ii) in good faith take such commercially reasonable actions as the Required Purchasers may reasonably request to obtain the consent of, or waiver by, any Person whose consent or waiver is necessary for (A) the applicable Note Party’s interest in such licenses, contract rights or Material Contracts to be deemed Collateral and for the Collateral Agent to have a security interest in it that might otherwise be restricted by the terms of the applicable license or agreement, whether now existing or entered into in the future and (B) the Collateral Agent to have the ability in the event of a liquidation of any of the Collateral to dispose of such Collateral in accordance with the Collateral Agent’s rights and remedies under this Agreement and the other Note Documents; provided, that, the failure to obtain any such consent or waiver shall not by itself constitute a Default.

8.17 Anti-Corruption Laws. Conduct its business in compliance with the United States Foreign Corrupt Practices Act of 1977, the UK Bribery Act 2010 and other similar anti-corruption legislation in other jurisdictions and maintain policies and procedures designed to promote and achieve compliance with such Laws.

8.18 Post-Closing Obligations. Within the time periods set forth therefor on Schedule 8.18 (or such longer periods of time as may be agreed to by the Required Purchasers in their sole discretion), deliver to the Purchasers such other documents, instruments, certificates or agreements as are listed on Schedule 8.18 or take such other actions as are described on Schedule 8.18, in each case in form and substance reasonably satisfactory to the Required Purchasers.

8.19 Collateral Access Agreements. In the case of a leasehold interest of any Note Party in real property that is located in the U.S. and on which Collateral in excess of $5,000,000 is stored or otherwise located, the Issuer shall use commercially reasonable efforts to obtain Collateral Access Agreements within 60 days thereafter (or such longer period as the Required Purchasers may agree in their sole discretion); provided that this Section 8.19 shall not apply so long as the FP Notes and/or the LM/BP Notes remain outstanding.

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8.20 Preemptive Rights.

(a) If the Issuer proposes to issue Equity Interests, other than in an Excluded Issuance, then the Issuer shall:

(i) provide written notice to each Purchaser no less than twenty (20) Business Days prior to the planned announcement of such issuance (the date of such planned announcement, the “Proposed Announcement Date”), setting forth in reasonable detail (1) the designation and all of the terms and provisions of the securities proposed to be issued (the “Proposed Securities”), including, to the extent applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualification, limitations or restrictions thereof and interest rate and maturity, (2) the anticipated price and other terms of the proposed sale of such securities (including the type of offering of the Proposed Securities) and (3) the amount of such securities proposed to be issued; provided, that following the delivery of such notice, the Issuer shall deliver to each Purchaser any such information such Purchaser may reasonably request in order to evaluate the proposed issuance, except that the Issuer shall not be required to deliver any information that has not been and will not be provided or otherwise made available to the proposed purchasers of the Proposed Securities; and

(ii) offer to issue and sell to each Purchaser, upon full payment by such Purchaser, on such terms as the Proposed Securities are to be issued a portion of the Proposed Securities equal to a percentage determined by dividing (1) the number of Shares of Common Stock such Purchaser beneficially owns on an as converted basis, but excluding for this purpose any attribution of ownership of securities held by Persons who are not Affiliates of such Purchaser by (2) the total number of Shares of Common Stock then outstanding on an as-converted basis (in each case, the as-converted basis shall be calculated using the maximum number of shares issuable under outstanding Equity Interests, but for the avoidance of doubt, solely to the extent such Equity Interests are then “in the money” or otherwise exercisable based on the Closing Price of the Common Stock on the Trading Day immediately preceding the applicable Notice Date (as defined below)), such percentage, such Purchaser’s “Participation Portion”).

(b) Each Purchaser will have the option, exercisable by written notice to the Issuer, to irrevocably accept the Issuer’s offer and commit to purchase any or all of the Equity Interests offered to be sold by the Issuer to such Purchaser, which notice (a “Participation Notice”) must be given no less than fifteen (15) Business Days prior to the Proposed Announcement Date (the “Notice Date”). If the Issuer offers two or more securities in units to the other participants in the offering, each Purchaser must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such unit. The closing of the exercise of such subscription right shall take place simultaneously with the closing of the sale of the Proposed Securities giving rise to such subscription right. If any Purchaser does not deliver a Participation Notice on or before the Notice Date, the Issuer will be free to sell such Proposed Securities that such Purchaser has not elected to purchase during the 90 days following the Notice Date on terms and conditions no more favorable taken as a whole (but with aggregate economic terms not more favorable) to the purchasers thereof than those offered to such Purchaser in the notice delivered in accordance with Section 8.20(a). Any Proposed Securities offered or sold by the Issuer after such 90-day period must be reoffered to issue or sell to each Purchaser pursuant to this Section 8.20.

(c) The election by any Purchaser not to exercise its subscription rights under this Section 8.20 in any one instance shall not affect their right as to any subsequent proposed issuance.

(d) In the case of an issuance subject to this Section 8.20 for consideration in whole or in part other than cash, including securities acquired in exchange therefor (other than securities by their

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terms so exchangeable), the consideration other than cash shall be deemed to be the fair market value thereof.

(e) In the event that the Issuer proposes an issuance of Proposed Securities and the full Participation Portion of securities that would be issued to the Purchaser pursuant to this Section 8.20 in connection with such issuance of Proposed Securities would exceed the amount that the Issuer could issue to the Purchaser without shareholder approval pursuant to NYSE rules, the Issuer shall use its reasonable best efforts to hold a special meeting of its shareholders as promptly as practicable to obtain such approval and the proxy statement related to such special meeting will include a recommendation from the Issuer’s Board of the Directors that the shareholders of the Issuer vote in favor of the issuance to the Purchaser of the Participation Portion (it being understood that no such issuance will be conditioned on the receipt of approval for issuance to the Purchaser of the applicable Participation Portion); provided that, if shareholder approval of the issuance to the Purchaser is not obtained, the applicable Participation Portion shall automatically be decreased to one Equity Interest less than as would require shareholder approval pursuant to NYSE rules.

8.21 Antitrust Filings Cooperation. In the event that any Antitrust Filings are required to be made in connection with any conversion of Convertible Notes in accordance with Section 2.11 or any exercise of Warrants in accordance with the terms set forth in Exhibit B, the Issuer and the Purchasers shall (i) reasonably cooperate with the other Party (the Purchasers or the Issuer, respectively) in order to timely complete any such Antitrust Filings and to obtain as promptly as reasonably practicable all consents, registrations, approvals, permits, expirations of waiting periods and authorizations necessary for such conversion or exercise, and (ii) use its reasonable best efforts to respond as promptly as reasonably practicable to any questions that may be raised in connection with all such Antitrust Filings. For the avoidance of doubt, nothing in this Agreement shall require the Issuer or any of its Affiliates to propose, negotiate, effect or agree to the sale, divestiture, license or other disposition of any assets or businesses of the Issuer or any of its Affiliates or otherwise to take any action that limits the Issuer’s or any of its Affiliates’ freedom of action with respect to, or its ability to retain, any of the businesses, products or service lines, or assets of the Issuer and its Affiliates.

8.22 Acknowledgment of Registration Rights. The Issuer hereby acknowledges and agrees that (i) the Conversion Shares and the Shares to be issued upon exercise of the Warrants are and shall at all times be “Registrable Securities” as defined in the Investor Rights Agreement and (ii) in accordance with the terms of the Investor Rights Agreement, following receipt of one or more demands by the Purchaser, it shall use its reasonable best efforts to file with the SEC a registration statement with respect to the Conversion Shares and/or the Shares to be issued upon exercise of the Warrants and to cause such registration statement to be declared effective by the SEC as soon as reasonably practicable after the filing thereof.

8.23 Shareholder Vote. The Issuer will use its reasonable best efforts (subject to the fiduciary duties of the Issuer’s Board of Directors and its management) to obtain shareholder approval at the next annual meeting of its shareholders (the “Initial Annual Meeting”) for the issuance of all Shares of Common Stock issuable upon conversion of the Convertible Notes and the exercise of the Warrants by Lockheed Martin as provided for in this Agreement, and the proxy statement related to such special meeting will include a recommendation by the Issuer’s Board of Directors that the shareholders of the Issuer vote in favor of such proposal. If the shareholders of the Issuer do not approve the issuance of all such Shares, the Issuer will use its reasonable best efforts to obtain shareholder approval at the next annual meeting of shareholders and each subsequent annual meeting thereafter. If, as of any date following the Initial Annual Meeting at which the shareholders of the Issuer do not approve the issuance of all such Shares, and prior to

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any subsequent shareholder meeting at which the shareholders of the Issuer will be asked to again provide such approval, Lockheed Martin or any of its Affiliates is the Purchaser and provides a Conversion Notice in accordance with Section 2.11(b) or an Exercise Notice in accordance with Section 3(a)(i) of the Form of Warrant, in lieu of delivery of any Shares in excess of any limitations then applicable under NYSE rules, including, without limitation, as a result of the restrictions set forth in Section 2.11(n) and Section 4(i) of the Form of Warrant, the Issuer shall, solely to the extent permitted under the FP Note Documents and the LM/BP Note Documents, pay to such Purchaser, on the applicable Conversion Date or Exercise Date, as applicable, the product of (x) the number of Shares in excess of any limitations then applicable under NYSE rules and (y) the Prepayment Current Market Price determined as of the date of the applicable Conversion Notice or Exercise Notice, as applicable, delivered by such Purchaser to the Issuer.

Article IX
NEGATIVE COVENANTS

So long as any Purchaser shall have any Convertible Note or other Obligation hereunder that shall remain unpaid or unsatisfied (other than contingent indemnification obligations for which no claim has been asserted), each Note Party shall not, nor shall it permit any Subsidiary to, directly or indirectly:

9.01 Liens.

Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

(a) Liens pursuant to any Note Document;

(b) Liens existing on the date hereof and listed on Schedule 9.01;

(c) Liens (other than Liens imposed under ERISA) for taxes, assessments or governmental charges or levies not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

(d) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to customary reservations or retentions of title arising in the ordinary course of business, provided, that, such Liens secure only amounts not yet due and payable or, if due and payable, are unfiled and no other action has been taken to enforce the same or are being contested in good faith by appropriate proceedings for which adequate reserves determined in accordance with GAAP have been established;

(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance, the payment or provision of compensation or benefits and other social security legislation, other than any Lien imposed by ERISA;

(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, indemnity and performance bonds and other obligations of a like nature incurred in the ordinary course of business;

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(g) easements, encroachments, rights-of-way, covenants and restrictions and other similar encumbrances affecting real property which are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person conducted thereon;

(h) Liens securing judgments for the payment of money (or appeal or other surety bonds relating to such judgments) not constituting an Event of Default under Section 10.01(h);

(i) Liens securing Indebtedness permitted under Section 9.03(e); provided, that: (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness, (ii) the Indebtedness secured thereby does not exceed the cost (negotiated on an arm’s length basis) of the property being acquired on the date of acquisition and (iii) such Liens attach to such property concurrently with or within ninety (90) days after the acquisition thereof;

(j) licenses, sublicenses, leases or subleases (other than any exclusive license or sublicense relating to intellectual property) granted to others in the ordinary course of business not interfering in any material respect with the business of any Note Party or any of its Subsidiaries;

(k) any interest of title of a lessor under, and Liens arising from UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, leases permitted by this Agreement;

(l) normal and customary bankers’ liens and rights of setoff upon deposits of cash in favor of banks or other depository institutions;

(m) Liens of a collection bank arising under Section 4-210 of the Uniform Commercial Code on items in the course of collection;

(n) Liens of sellers of goods to the Issuer and any of its Subsidiaries arising under Article 2 of the Uniform Commercial Code or similar provisions of applicable law in the ordinary course of business, covering only the goods sold and securing only the unpaid purchase price for such goods and related expenses;

(o) non-exclusive licenses of over-the-counter software that is commercially available to the public and other non-exclusive licenses granted in the ordinary course of business by a Note Party or Subsidiary;

(p) deposits made or other security provided to secure liabilities to insurance carriers under insurance or self-insurance arrangements in the ordinary course of business;

(q) Liens solely on accounts receivable, inventory, cash and any deposit account established and maintained with the lender under a Working Capital Facility to hold such cash and all proceeds of the foregoing (other than proceeds of (i) the Convertible Notes, (ii) Intellectual Property, and (iii) Collateral that does not secure such Working Capital Facility) (the “Working Capital Priority Collateral”) securing the Indebtedness under any Working Capital Facility permitted by Section 9.03(g), which Liens may rank higher in lien priority to the Liens of the Collateral Agent on the Working Capital Priority Collateral securing the Obligations of the Secured Parties; provided, that such Indebtedness is subject to a customary intercreditor and lien subordination agreement (a “WC Intercreditor Agreement”) in form and substance reasonably satisfactory to the Required Purchasers and the Collateral Agent with the

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applicable financial institution providing such Working Capital Facility (“Working Capital Facility Lender”) pursuant to which (A) the security interest in the Working Capital Priority Collateral securing the Working Capital Facilities are senior and prior to the security interest of the Collateral Agent in the Working Capital Priority Collateral securing the Obligations, (B) the Collateral Agent, on behalf of the Secured Parties, shall retain a second (or, so long as any FP Notes or LM/BP Notes remain outstanding, third) priority security interest in such Working Capital Priority Collateral, and (C) the Collateral Agent, on behalf of the Secured Parties, shall maintain its first (or, so long as any FP Notes or LM/BP Notes remain outstanding, second) priority security interest in all other Collateral of the Note Parties; and

(r) Liens in respect of the FP Notes and the LM/BP Notes; provided, in each case, that such Liens are subject to the First Lien/Second Lien Intercreditor Agreement.

(s) Liens (i) solely on any cash (or Cash Equivalent) earnest money deposits (including as part of any escrow arrangement) made by a Note Party or any Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder, or (ii) on advances of cash or Cash Equivalents in favor of the seller of any property to be acquired in an Investment permitted pursuant to Section 9.02 to be applied against the purchase price for such Investment;

(t) Liens to secure obligations in respect of letters of credit incurred pursuant to Section 9.03(l); and

(u) other Liens securing obligations which do not exceed $5,000,000.

9.02 Investments.

Make any Investments, except:

(a) Investments held by a Note Party or a Subsidiary in the form of cash or Cash Equivalents;

(b) Investments existing on date hereof and set forth in Schedule 9.02;

(c) Investments in any Person that is a Note Party (other than the purchase or other acquisition of Equity Interests of the Issuer) prior to giving effect to such Investment;

(d) Investments by any Subsidiary of the Issuer that is not a Note Party in any other Subsidiary of the Issuer that is not a Note Party;

(e) Investments (i) consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss, (ii) consisting of extensions of credit to (including as evidenced by one or more promissory notes), or receipt of investments in convertible or equity instruments issued by, GeoOptics, Inc. or its Affiliates in exchange for sale of products by any Note Party or Subsidiary to such customer in an original aggregate amount not to exceed $6,000,000 and (iii) consisting of extensions of credit to (including as evidenced by one or more promissory notes), or receipt of investments in convertible or equity instruments issued by, customers or their related parties, in each case, in exchange for sale of products to such customer provided by any Note Party in an aggregate amount not to exceed $5,000,000; provided that, in the case of clauses (ii) and (iii), such promissory notes, convertible

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instruments and/or equity instruments are subject to Liens in favor of the Collateral Agent, for the benefit of the Secured Parties, to the extent such promissory notes, convertible instruments and/or equity instruments are held by a Note Party and do not constitute Excluded Property; provided, further, that to the extent any such promissory note, convertible instrument or equity instrument is held by a Note Party and constitutes Excluded Property, the Note Parties shall use commercially reasonable efforts to request the issuer of such note or instrument to seek consent of any relevant third party or amend the applicable Contractual Obligation to permit such pledge so that the promissory note or instrument no longer constitutes Excluded Property;

(f) Investments in any Subsidiary that is not a Note Party not exceeding $5,000,000 in the aggregate at any one time outstanding;

(g) other Investments by a Note Party not exceeding $10,000,000 in the aggregate at any one time outstanding for all such Investments made pursuant to this clause (g); provided, that, no Investment otherwise permitted by this clause (g) shall be permitted to be made if any Default has occurred and is continuing or would result therefrom;

(h) Investments consisting of the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of any Note Party;

(i) Investments consisting of purchases and acquisitions of inventory, supplies, material, equipment, or other similar assets in the ordinary course of business and, in each case, not constituting an Acquisition;

(j) advances of payroll payments to employees in the ordinary course of business;

(k) loans or advances to any employee, officer, director or member of management of the Issuer and its Subsidiaries, the proceeds of which are used to satisfy tax liabilities of such employee, officer, director or member of management incurred in connection with the exercise of stock options in the Issuer held by such Person; provided that the aggregate amount of all loans and advances made pursuant to this clause (k) does not exceed $2,500,000 at any time outstanding;

(l) loans and advances to officers, directors, managers, and employees for business related travel expenses, moving expenses, and other similar expenses, in each case incurred in the ordinary course of business; provided that the aggregate amount of all loans and advances made pursuant to this clause (l) does not exceed $2,500,000 at any time outstanding;

(m) Permitted Acquisitions;

(n) Investments in Tyvak International S.R.L. in an aggregate amount not to exceed $3,000,000;

(o) any Investment received in connection with any Disposition pursuant to Section 9.05;

(p) Investments the payment for which consists of Equity Interests of the Issuer (other than Disqualified Capital Stock);

(q) Investments (including debt obligations and Equity Interests) received in the ordinary course of business in connection with the bankruptcy or reorganization of suppliers and customers and in

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settlement of delinquent obligations of, and other disputes with, suppliers and customers arising out of the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment; and

(r) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business.

9.03 Indebtedness.

Create, incur, assume or suffer to exist any Indebtedness, except:

(a) Indebtedness under the Note Documents;

(b) Indebtedness of the Issuer and its Subsidiaries existing on the date hereof and described on Schedule 9.03 and renewals, refinancings and extensions thereof (other than renewals, refinancings and extensions under the FP Note Documents and the LM/FP Note Documents); provided that (x) no such Indebtedness shall be refinanced or renewed for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing except by an amount equal to unpaid accrued interest and premium thereon and fees, commissions and expenses (including upfront fees and original issue discount) reasonably incurred, in connection with such refinancing and (y) no such renewed, refinanced or extended Indebtedness shall have a scheduled maturity date earlier than the date that is 180 days after the Maturity Date;

(c) intercompany Indebtedness permitted under Section 9.02 (other than by reference to this Section 9.03 (or any sub-clause hereof));

(d) obligations (contingent or otherwise) of the Issuer or any Subsidiary existing or arising under any Swap Contract, provided, that, (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

(e) purchase money Indebtedness (including obligations in respect of Capital Leases or Synthetic Leases) hereafter incurred by the Issuer or any of its Subsidiaries to finance the purchase of fixed assets, and renewals, refinancings and extensions thereof, provided, that, (i) no Default or Event of Default has occurred and is continuing both immediately prior to and after giving effect thereto, (ii) the total of all such Indebtedness for all such Persons taken together shall not exceed an aggregate principal amount of $25,000,000 at any one time outstanding, (iii) such Indebtedness when incurred shall not exceed the purchase price of the asset(s) financed, (iv) no such Indebtedness shall be refinanced for a principal amount in excess of the principal balance outstanding thereon at the time of such refinancing except by an amount equal to unpaid accrued interest and premium thereon plus other amounts owing or paid related to such Indebtedness, and fees, commissions and expenses (including upfront fees and original issue discount) reasonably incurred, in connection with such refinancing and (v) any such Indebtedness that is refinanced, renewed or extended shall not have a scheduled maturity date earlier than the date that is 180 days after the Maturity Date;

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(f) other unsecured Indebtedness hereafter incurred by the Issuer or any of its Subsidiaries in an aggregate amount not to exceed $10,000,000 at any one time outstanding; provided, that the aggregate amount of unsecured Indebtedness incurred by Subsidiaries that are not Note Parties under this clause (f) shall not exceed $3,000,000; provided, further that the Issuer and the Note Parties may incur unsecured Indebtedness pursuant to this clause (f) without subordinating such Indebtedness to the Obligations so long as the aggregate principal amount of such unsecured Indebtedness not subject to a subordination agreement does not exceed $2,000,000;

(g) Indebtedness of the Issuer or another Note Party in the form of one or more revolving credit or other working capital facilities with a maximum credit line in an aggregate amount not to exceed, together with the aggregate amount incurred pursuant to Section 9.03(l), $25,000,000, in each case, in the aggregate (each, a “Working Capital Facility”); provided, that (i) no Subsidiary shall Guarantee, or provide a Lien to secure, the obligations under any such Working Capital Facility if such Subsidiary is not a Guarantor (and does not pledge its assets in support thereof) in accordance with the terms of the Note Documents and (ii) no Default or Event of Default shall exist at the time the definitive credit, loan or similar agreement in respect of such Working Capital Facility is executed and delivered;

(h) Indebtedness in respect of the FP Notes and the LM/BP Notes; provided that such Indebtedness is subject to the First Lien/Second Lien Intercreditor Agreement, (ii) the aggregate outstanding principal balance of the FP Notes does not exceed $119,000,000 (other than any interest paid-in-kind in accordance with the FP Note Purchase Agreement as in effect on the Closing Date) and (iii) the aggregate outstanding principal balance of the LM/BP Notes does not exceed $56,256,675.00 (other than any interest paid-in-kind in accordance with the LM/BP Note Purchase Agreement as in effect on the Closing Date);

(i) Indebtedness incurred by any Note Party or any Subsidiary created or issued in the ordinary course of business (including obligations with respect to letters of credit, bank guarantees, surety bonds, performance bonds or similar instruments) in respect of workers’ compensation claims (or in respect of reimbursement type obligations regarding workers’ compensation claims), performance or surety bonds, health, disability or other employee benefits or property (including unemployment insurance and premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other benefits, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement or indemnification type obligations regarding workers’ compensation claims, performance or surety bonds, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance;

(j) Indebtedness of any Note Party or any Subsidiary assumed or acquired in connection with any Permitted Acquisition; provided that (i) the amount of such Indebtedness shall be included in the calculation of the Permitted Acquisition Cap, (ii) such Indebtedness exists at the time such Permitted Acquisition is consummated and is not created or incurred in connection therewith or in contemplation thereof, (iii) no Note Party (other than such Person so acquired in such Permitted Acquisition or any other Person that such Person merges with or that acquires the assets of such Person in connection with such Permitted Acquisition) shall have any liability or other obligation with respect to such Indebtedness and (iv) if such Indebtedness is secured, no Lien thereon shall extend to or cover any other assets other than the assets acquired in such Permitted Acquisition (other than the proceeds or products thereof, accessions or additions thereto and improvements thereon) or attach to any other property of any Note Party.

(k) obligations in respect of tenders, statutory obligations (including health, safety and environmental obligations), bids, governmental contracts, trade contracts, surety, indemnity, stay, customs,

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judgment, appeal, performance, completion and/or return of money bonds or guaranties or other similar obligations incurred in the ordinary course of business, or obligations in respect of letters of credit, bank guarantees, surety bonds or similar instruments related thereto;

(l) Indebtedness of any Note Party or any Subsidiary in respect of any letter of credit or letter of credit facility in an aggregate amount not to exceed, together with the aggregate amount incurred pursuant to Section 9.03(g), $25,000,000;

(m) Indebtedness in respect of the Staton Payment Obligations;

(n) Indebtedness representing deferred compensation or similar arrangements made in the ordinary course of business to any future, present or former employees, directors, officers, managers, members, partners, independent contractors or consultants of the any Note Party or any Subsidiary;

(o) endorsement of instruments or other payment items for collection or deposit in the ordinary course of business and Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; and

(p) Indebtedness of a Note Party or any Subsidiary owing to any insurance company in connection with the financing of any insurance premiums permitted by such insurance company in the ordinary course of business.

9.04 Merger and Consolidation.

Merge, dissolve, divide, liquidate, consolidate, with or into another Person, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any Person; provided, that, notwithstanding the foregoing provisions of this Section 9.04 but subject to the terms of Sections 8.12 and 8.14, (a) the Issuer may merge or consolidate with any of its direct Subsidiaries, provided that the Issuer shall be the continuing or surviving entity, (b) any Note Party (other than the Issuer) may merge or consolidate with any other Note Party or any other Person who becomes a Note Party as a result of such merger or consolidation (c) any Subsidiary that is not a Note Party may be merged or consolidated with or into any Note Party, provided that such Note Party shall be the continuing or surviving entity, (d) any Subsidiary that is not a Note Party may be merged or consolidated with or into any other direct Subsidiary of it that is not a Note Party or any other Person in order to effect an Investment permitted pursuant to Section 9.02, (e) any Subsidiary that is not a Note Party may dissolve, liquidate or wind up its affairs at any time provided that such dissolution, liquidation or winding up could not reasonably be expected to have a Material Adverse Effect and all of its assets and business are transferred to a Note Party prior to or concurrently with such dissolution, liquidation or winding up and (f) so long as no Default or Event of Default exists or would result therefrom, any Note Party (other than the Issuer) or Subsidiary (other than the Issuer) may effect a merger, dissolution, liquidation, consolidation or Disposition, the purpose of which is to effect a Disposition permitted pursuant to Section 9.05; provided, that, in the case of (a) through (d) above, the merging parties are organized in the same jurisdiction (it being understood that for this purpose, States of the United States shall be deemed to be the same jurisdiction as each other).

9.05 Dispositions.

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Make any Disposition, unless (a) the consideration paid in connection therewith shall be cash or Cash Equivalents paid contemporaneous with consummation of the transaction and shall be in an amount not less than the fair market value of the property disposed of, (b) no Default or Event of Default shall have occurred and be continuing both immediately prior to and after giving effect to such Disposition, (c) such transaction does not involve the sale or other disposition of any Equity Interests in any Subsidiary, (d) the Note Parties shall use the net cash proceeds of such Disposition to prepay the FP Notes to the extent required by the FP Note Documents or LM/BP Notes to the extent required by the LM/BP Note Documents and (e) the aggregate fair market value of all of the assets sold or otherwise disposed of in such Disposition together with the aggregate fair market value of all assets sold or otherwise disposed of by the Note Parties and their Subsidiaries in all such transactions occurring during the term of this Agreement does not exceed $2,000,000; provided that the Note Parties and their Subsidiaries may make Dispositions of property in an amount not to exceed $25,000,000 in the aggregate so long as (i) at the time of such Disposition (other than any such Disposition made pursuant to a legally binding commitment entered into at a time when, after giving effect to such Disposition, no Default or Event of Default has occurred and is continuing), no Default or Event of Default shall have occurred and is continuing or would result from such Disposition, and (ii) with respect to any Disposition (or series of related Dispositions), the Note Party or relevant Subsidiary shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents and the consideration shall be not less than the fair market value of the property disposed of (in each case, free and clear of all Liens at the time received, other than Liens permitted by Section 8.01).

9.06 Restricted Payments.

Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except that:

(a) each Subsidiary may make Restricted Payments to any Note Party;

(b) any Subsidiary that is not a Wholly Owned Subsidiary may declare and make dividend payments or other distributions to each owner of its Equity Interests pro rata based on their relative ownership interests of the relevant class of Equity Interests of such Subsidiary;

(c) each Note Party and each of their Subsidiaries may declare and make dividend payments or other distributions payable solely in the Qualified Capital Stock of such Person;

(d) the payment of any dividend or distribution or the consummation of any irrevocable redemption within 60 days after the date of declaration thereof or the giving of such irrevocable notice, as applicable, if at the date of declaration or the giving of such notice such payment would have been permitted by another clause of this Section 9.06 and complied with the provisions of this Agreement;